Canadian Business Law - Workers' Compensation Legislation PDF

Canadian Business Law, 3rd Edition CHAPTER 9 Workers’ Compensation Legislation  2 Objectives of the Legislation The workers’ compensation (WC) acts of Alberta and BC The WC Act is a no-fault insurance scheme for work- re...

Canadian Business Law, 3rd Edition CHAPTER 9 Workers’ Compensation Legislation  2 Objectives of the Legislation The workers’ compensation (WC) acts of Alberta and BC The WC Act is a no-fault insurance scheme for work- related injuries or diseases Employers pay premiums that fund the cost of the system The trade-off WC compensates workers who are injured on the job or contract an occupational disease In exchange, employers are protected from being sued by injured workers Legislation and WC regime increasingly focused on prevention and preventative measures Copyright © 2021 Emond Montgomery Publications. All rights reserved.  3 Key Features of the Legislation 1. No-fault—pays out regardless of employer or employee negligence 2. Benefits are funded by premiums 3. It is illegal for workers to contribute to WC premiums 4. WC rights cannot be waived Copyright © 2021 Emond Montgomery Publications. All rights reserved.  4 Key Features of the Legislation (cont’d) 5. Coverage is mandatory for most employers 6. Focus is on early and safe return to work (RTW) 7. Vocational rehabilitation for employees unable to return to their original jobs 8. Administered by WC boards (WorkSafeBC and WCB Alberta) Copyright © 2021 Emond Montgomery Publications. All rights reserved.  5 Coverage Most industries are covered Some industries are not compulsorily covered but may apply for coverage if they choose Financial institutions Recreational and social clubs Broadcasting stations Law firms Copyright © 2021 Emond Montgomery Publications. All rights reserved. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  6 Coverage (cont’d) Elimination of the agriculture exemption in Alberta Workers not covered include: Independent contractors Sole proprietors Executive officers Copyright © 2021 Emond Montgomery Publications. All rights reserved. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  7 WCB Benefit Eligibility Must be “arising out of and in the course of employment” The injury need not result from performance of the job so long as it is reasonably incidental to it Copyright © 2021 Emond Montgomery Publications. All rights reserved. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  8 WCB Benefit Eligibility (cont’d) Wilful Misconduct If the injury is “attributable primarily to the serious and wilful misconduct of the worker,” the injury will not likely be covered Occurs during a criminal act Occurs while intoxicated Is the result of an intentional self-inflicted injury Fighting when the issue is purely personal Horseplay if it is a serious deviation from employment duties Activities that are exclusively personal and have no direct or indirect relationship to employment duties. Copyright © 2021 Emond Montgomery Publications. All rights reserved. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  9 WCB Benefit Eligibility (cont’d) Disability Claims Gradual onset Pre-existing conditions Occupational diseases Causal relationship (clear connection between work or work conditions and recognized disease) Copyright © 2021 Emond Montgomery Publications. All rights reserved. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  10 WCB Benefit Eligibility (cont’d) Mental Stress or disorder and chronic pain Work-related events are the predominant cause Events must be excessive or unusual There is objective confirmation of the events Diagnosed by an appropriately qualified medical expert Are not the result of making a compensation claim Copyright © 2021 Emond Montgomery Publications. All rights reserved. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  11 Disability Claims The onus is normally on the worker to show a causal relationship with work Except: PTSD for first responders Certain cancers and heart attacks for firefighters Schedule B to the British Columbia WC Act and the Alberta WC Regulation Lists industrial diseases that arise from specific industries If a worker contracts a listed disease, there is a rebuttable presumption that the disease results from employment Copyright © 2021 Emond Montgomery Publications. All rights reserved. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  12 What Do Benefits Cover? 1. Lost earnings on the day of the injury paid by the employer 2. Health Care Costs 3. Temporary Partial Disability 4. Permanent Total Disability Payable for life 5. Temporary Total Disability Periodic payments in the same amount as if the employee had been left permanently disabled Payments cease after recovery Copyright © 2021 Emond Montgomery Publications. All rights reserved. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  13 What do Benefits Cover? (cont’d) 6. Permanent Partial Disability or Disfigurement Payable for life 7. Vocational Rehabilitation Following many types of injuries or illnesses, the worker may rejoin the work force in some other capacity Invariably, retraining the worker to gain new knowledge and skills is required WCB will finance this retraining Copyright © 2021 Emond Montgomery Publications. All rights reserved. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  14 What do Benefits Cover? (cont’d) 8. Death and Survivor Benefits A spouse who survives a worker who died from a compensable injury may be entitled to a lump-sum payment based on factors such as The deceased’s net average earnings The number of dependent children The dependent's entitlement to CPP earnings Whether the spouse is incapacitated Copyright © 2021 Emond Montgomery Publications. All rights reserved. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  15 Case Study: Robert Robert is a 38-year-old head auto mechanic at Otto’s Body Shop He has worked there for four years, earning $1000 net per week At the beginning of his eight-hour shift, Robert tore a ligament in the thumb of his right hand (the same ligament he damaged several years earlier working for a previous employer) Copyright © 2021 Emond Montgomery Publications. All rights reserved. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  16 Case Study: Robert (cont’d) Otto asks a co-worker to drive Robert to the hospital Robert has badly injured his hand and will not be able to use it for four weeks He will required extensive physiotherapy to regain full use On the day of the injury, Otto must pay Robert’s full wages and benefits Copyright © 2021 Emond Montgomery Publications. All rights reserved. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  17 Case Study: Robert (cont’d) Robert’s physiotherapy and treatments are 100% covered by WCB Monetary benefits: WCB will compensate for loss of earnings from the first working day after the date of the injury, based on 90 percent of the employee’s pre-injury net earnings For Robert: $1000 (net average earnings) times 90 percent = $900 per week Copyright © 2021 Emond Montgomery Publications. All rights reserved. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  18 Case Study: Robert (cont’d) After four weeks off work, Robert returns on modified duties, earning $500 (net) per week Robert’s net loss of earnings are $1000 minus $500 = $500 per week His loss of earnings benefits are $500 times 90% = $450 per week In total, Robert earns $500 (net salary) plus $450 (WCB benefits) or $950 per week while on modified duties Copyright © 2021 Emond Montgomery Publications. All rights reserved. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  19 Duty to Co-operate The goal of WCB is to return a worker to the pre- accident employer where possible Employer and employee therefore must Keep in touch Disclose medical information that relates to functional abilities Make any modifications to facilitate an early return Failure by the employee to provide information may result in a suspension of benefits Copyright © 2021 Emond Montgomery Publications. All rights reserved. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  20 Funding the WC System Employer Assessments Employers pay the full cost of the system by means of premiums It is illegal for an employer to recover any part of their premium from workers Employers must register with WCB Employers are required to provide information that will permit the WCB to classify and assign it a base insurance rate according to: type of industry, and potential hazards Certificates of recognition (COR) (both provinces) Alberta’s Partnerships in Injury Reduction (PIR) & BC’s Partnerships in Injury & Disability Prevention Program (“Partners Program”) Copyright © 2021 Emond Montgomery Publications. All rights reserved. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  21 Effective Claims Management Establish effective procedures for investigating injuries Complete and file an accident report to initiate the claim process Document all claims, however minor Ensure justifiable claims are compensated promptly Challenge only truly doubtful claims, but protest them from the outset Copyright © 2021 Emond Montgomery Publications. All rights reserved. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  22 Effective Claims Management (cont’d) Keep notes of all contacts with WCB Establish a return-to-work plan and accommodate Do not contact an employee’s physician Ensure confidentiality of all medical files—keep them separate from personnel files. Copyright © 2021 Emond Montgomery Publications. All rights reserved. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  23 Appeals A worker, dependent, or employer who disagrees with a decision may request a review BC time limit = 90 days WCB Appeals Commissions are independent of WC Boards Copyright © 2021 Emond Montgomery Publications. All rights reserved. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  Canadian Business Law, 3rd Edition CHAPTER 10 Privacy Inside and Outside the Workplace  25 Privacy Privacy of personal information is a relatively new issue In past, privacy was protected by the practical difficulties in compiling records Today, vast amount of sensitive, personal information can be compiled, analysed, transferred, and manipulated in nanoseconds Privacy concerns are now paramount Employers can be vicariously liable for privacy invasions carried out by their employees in the course of their duties Personal Information Protection and Electronic Documents Act (PIPEDA): federal legislation that sets out how organizations may collect, use, and disclose personal information Copyright © 2021 Emond Montgomery Publications. All rights reserved.  26 What is “Personal Information”? It is information about an identifiable individual and includes such things as: Age, sex, religion, ethnicity, opinions, photographs ID numbers, home address, residential phone number, personal email address, web browsing Purchasing and spending habits, income, credit records, loan records Disciplinary actions, employee files, pay, benefit records Blood type, medical records Copyright © 2021 Emond Montgomery Publications. All rights reserved.  27 Freedom of Information and Protection of Privacy Act Provides individuals with the right to request access to information in the custody or control of public bodies, while providing public bodies with a framework within which they must conduct the collection, use, and disclosure of personal information Public bodies include: A department, branch, or office of the government An agency, board, commission, corporation, office, or other body designated as a public body in the regulations of the Act Educational bodies Health care bodies Local government bodies Self-governing professions Copyright © 2021 Emond Montgomery Publications. All rights reserved.  28 Freedom of Information and Protection of Privacy Act Provides access to records, unless the Act specifically allows the record to be withheld The right of access is balanced by the need to protect individual privacy You can ask to see records held by the government, including personal information about you You have the right to request that your personal information held in government files be corrected This is not an absolute right, and a request to correct information may be turned down Individuals can also complain to the commissioner if they believe their personal information has been collected, used, or disclosed in violation of the Act Provides for review by the Information and Privacy Commissioner Copyright © 2021 Emond Montgomery Publications. All rights reserved.  29 PIPEDA: Who’s Covered? Jan. 1, 2001—federal government enacted privacy legislation called the Personal Information Protection and Electronics Document Act (PIPEDA) to cover personal information held by organizations in the private sector Applies to personal information collected, used, disclosed, and retained on employees and customers, etc. in federally regulated industries Alberta, BC, other provinces passed comparable legislation: Personal Information Protection Act (PIPA), for provincially regulated industries: In November 2013, the Supreme Court of Canada struck down Alberta’s PIPA, providing one year to bring into compliance Alberta’s PIPA has since been amended (December 2014), is undergoing a comprehensive review Copyright © 2021 Emond Montgomery Publications. All rights reserved.  30 PIPEDA: Some Recent Amendments June 18, 2015—the federal Digital Privacy Act was proclaimed, with some key changes to PIPEDA Where security has been breached and there is risk of significant harm, the organization must report and keep records of the breach The definition of “personal information” has been broadened PIPEDA now covers applicants as well as employees Business contact information is exempt if used solely for the purpose of communicating for business, employment, or professional matters Permission to disclose without consent to third parties has been broadened in cases involving illegality, fraud, and financial abuse Privacy Commissioner can enter into compliance agreements Copyright © 2021 Emond Montgomery Publications. All rights reserved.  31 Privacy: 10 Principles 1. Accountability: the organization that collects the info must _____________________________________________________ 2. Identify the purpose: the organization must _____________________________________________________ 3. Consent: the individual _______________ prior to collection (some exceptions) 4. Limited collection: the organization must _____________________________________________________ Copyright © 2021 Emond Montgomery Publications. All rights reserved.  32 Privacy: 10 Principles (cont’d) 5. Limited use, disclosure, and retention: the organization may _______________________ __________________ and must not _____________________________________________________ 6. Be accurate: the organization should ensure that the info is ________________. Individuals are given the opportunity to correct errors 7. Provide safeguards: the organization should protect info against _____________________________________________________ Copyright © 2021 Emond Montgomery Publications. All rights reserved.  33 Privacy: 10 Principles (cont’d) 8. Be open: Privacy policies and procedures should _______________. Supervisors should be familiar with them. 9. Give individuals access: the organization must provide individuals with __________________ ____________________________________________ ____________________________________________ 10. Provide recourse: the organization must ____________________________________________ Copyright © 2021 Emond Montgomery Publications. All rights reserved.  34 Personal Information Protection Act (PIPA) In 2003, British Columbia enacted legislation comparable to PIPEDA, called the Personal Information Protection Act (PIPA) for provincially regulated industries Includes workplace rules for employee personal information In 2004, Alberta enacted legislation comparable to PIPEDA, called the Personal Information Protection Act (PIPA) for provincially regulated industries Includes workplace rules for personal employee information Amended 2005, 2009, 2010, 2014 Currently undergoing a comprehensive review Copyright © 2021 Emond Montgomery Publications. All rights reserved.  35 PIPA: Who’s Covered? Provincially regulated organizations to which PIPA applies include: Non-profit organizations Trade unions Private schools Partnerships Corporations Unincorporated associations Professional regulatory associations Any individual acting in a commercial capacity Any individual acting on behalf of a corporation, unincorporated association, trade union, or partnership Copyright © 2021 Emond Montgomery Publications. All rights reserved.  36 PIPA: Principles Governs the collection, use, and disclosure of personal information by private sector organizations Recognizes both the right of an individual to have his or her personal information protected, and the need of organizations to collect, use, or disclose personal information for reasonable purposes Personal information in the custody or control of private sector organizations, as it relates to commercial transactions or activities, are subject to PIPA For workplaces, PIPA also covers personal information about employees Copyright © 2021 Emond Montgomery Publications. All rights reserved.  37 PIPA: Principles (cont’d) PIPA allows individuals to request access to their own personal information, including employee information, and to request correction of inaccurate personal information. Individuals may also make a complaint to the commissioner if they believe their privacy has been violated (e.g., computer monitoring) or their personal information has been collected, used, or disclosed without proper authority or their consent. Allows the commissioner to hear privacy complaints and review the decisions of private sector organizations to deny individuals access to their own personal information, or to refuse requests for correction of that information. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  38 Privacy: Steps to Compliance 1. Appoint Chief Privacy Officer (CPO) 2. Assess how organization collects, stores, retains, uses, and discloses personal information for customers/clients/patients/suppliers and employees Include marketing, sales, HR, payroll, finance, purchasing, technical 3. Develop policies and procedures to bring organization into compliance 4. Train all staff to ensure awareness 5. Monitor performance of policy Copyright © 2021 Emond Montgomery Publications. All rights reserved. CHAPTER 12 Resignation and Retirement Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 40 Resignation Resignation should be: Formally accepted: Employers should send a letter to confirm acceptance of a letter of resignation. Voluntary: An employee who is given a choice between resigning or being dismissed may be found to have not resigned voluntarily. Resignation may be inferred from an employee’s intentional, unequivocal, and non-impulsive conduct. Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 41 Resignation (cont.) An employer who receives advance notice of an employee’s resignation may not want the employee to work during the notice period. To prevent an employee from working during the notice period, the employer should pay the employee but advise them not to attend work. There is a common law requirement, but not a statutory requirement, to provide reasonable advance notice of resignation. Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 42 Resignation (cont.) Special circumstances may trigger a statutory requirement to provide notice. For example, employees who have special expertise or a key role. Exit interviews may provide employers with valuable information and allow them to identify issues that, left unaddressed, could lead to claims. Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 43 Retirement Generally, Ontario law no longer permits employers to institute mandatory retirement policies at a particular age. Mandatory retirement policies may constitute age-related discrimination. Mandatory retirement policies are only permissible if an employer can show that mandatory retirement is a bona fide occupational requirement. Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 44 Retirement Employers should carefully document the reasons for terminating an older employee to avoid an age discrimination complaint. Assuming that an older employee will retire may also invite liability. Making an early retirement incentive available does not in itself constitute age discrimination. Early retirement offers should be presented in a neutral way by a neutral contact person—that is, not the individual’s immediate supervisor. Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals, 4th Edition CHAPTER 14 Dismissal Without Cause Copyright © 2020 Emond Montgomery Publications. All rights reserved.  46 Minimum Statutory Requirements If no just cause for dismissal: Review employment contract for explicit terms If no explicit terms employer must provide reasonable notice Alberta ESC and BC ESA establish minimum termination requirements Statutory minimums usually much lower than “reasonable notice” Notice period is to allow employee time to look for another job Employee may claim entitlements under ESC/ESA or sue for wrongful dismissal  47 Minimum Statutory Requirements: Notice/Pay Alberta Employees entitled to notice of termination or pay in lieu of notice after three months or more of employment British Columbia Employees entitled to notice of termination or compensation for length of service (CLOS) After three months or more of employment Employers can choose to provide notice, pay, or some combination Pay or notice is not required for temporary layoffs (where those are allowed) Once notice is given, terms and conditions of employment cannot be changed  48 Minimum Statutory Requirements: Notice/Pay (cont’d) In BC: no statutory duty for employee to give notice In Alberta: ESC requires employee to provide one to two weeks of notice See pages 479-80 for exemptions to employee notice requirements Employer may pay out statutory requirements after the employee has given notice  49 Minimum Statutory Requirements: Temporary Layoff Temporary ceasing of work with intent to recall Alberta Temporary layoff over 60 days is termination (termination pay is required) Longer layoff periods may be negotiated into collective agreements BC No general right to layoff Weeks in which employee earns less than 50% regular wage are considered layoff weeks  50 Minimum Statutory Requirements: Continuity of Employment Selling, leasing, transferring, or merging a business Employment is continuous as long as the business continues to operate Employee works for the new owner If new employer wishes to terminate: Notice, pay in lieu of notice, and (in BC) CLOS requirements apply from the date of employment with original employer Exception—gap in employment of more than three months  51 Minimum Statutory Requirements: Communicating Notice In writing Delivered in person or by mail, fax, or email Working notice rather than pay in lieu or CLOS Employer cannot alter terms/conditions of employment Employer may not reduce pay and must pay the wages the employee normally would earn  52 Minimum Statutory Requirements: Calculating Notice—Alberta Under s 56 of the Alberta ESC, the notice periods are: Less than 3 months = no notice required 3 months but less than 2 years’ service = 1 week 2 years but less than 4 years of service = 2 weeks 4 years but less than 6 years of service = 4 weeks 6 years but less than 8 years of service = 5 weeks 8 years but less than 10 years of service = 6 weeks 10 or more years of service = 8 weeks  53 Minimum Statutory Requirement: Calculating CLOS/Notice—BC Under s 63 of the BC ESA, the CLOS/notice periods are: Less than 3 months = no notice or CLOS required 3 months but less than 1 year of service = 1 week 1 year but less than 3 years’ service = 2 weeks 3 years but less than 4 years’ service = 3 weeks 4 years but less than 5 years of service = 4 weeks 5 years but less than 6 years of service = 5 weeks 6 years but less than 7 years of service = 6 weeks 7 years but less than 8 years of service = 7 weeks 8 or more years of service = 8 weeks  54 Common Law Reasonable Notice Longer than ESC/ESA minimum requirements Common law reasonable notice is determined on a case-by-case basis Bardal factors considered include: 1. Employee’s age 2. Employee’s position 3. Employee’s length of service 4. Employee’s level of compensation 5. Availability of similar employment (given experience, training, and qualifications)  55 Which Is Better: Working Notice or Pay in Lieu of Notice? Working notice: Cost-efficient Terminations associated with economic conditions Treats employees respectfully Provides the employees ample opportunities to seek new work Inappropriate if termination is for performance issues that are not quite just cause Inappropriate where the employee is unable to use the working notice E.g., sick leave, pregnancy, or parental leave  56 Structuring a Separation Package Lump sum reflecting minimum standards and common law notice requirements Employee may prefer lump sum and be willing to settle for less Salary and benefit continuation during notice period Specify that the payments are part of a separation package inclusive of all entitlements If the employee finds new employment, pay stops or employee receives lump sum for some proportion of the remainder Continue to pay benefits premiums and provide benefits throughout the notice period or longer Employee signs release only after statutory minimums are paid out  57 Minimum Statutory Requirements: Mass Terminations Alberta ESC Employer who terminates 50 or more employees at one location within a four-week period Must notify the minister at least four weeks in advance BC ESA Employer who terminates 50 or more employees within a two-month period Notice periods in AB and BCare similar 8 weeks where 50–100 employees are terminated 12 weeks where 101–300 employees are terminated 16 weeks where 301 or more employees are terminated  58 Minimum Statutory Requirements: Exceptions to Notice Requirements 1. Probationary employee 7. Strikes or lockouts 2. Term or task employee 8. Casual employees 3. Temporary layoff 9. Frustration of 4. Just cause contract 5. Refusal of reasonable 10. Seasonal work alternative work 6. Return after recall 11. Employee quits  59 Wrongful Dismissal An employee may make a claim for wrongful dismissal if the employer did not have just cause and did not give sufficient notice or pay in lieu Meeting the requirements in the ESC or ESA does not prevent wrongful dismissal claims Dismissed employees have two years to file with the courts Alberta: Under $50,000: Small Claims Court Over $50,000: Court of Queen’s Bench BC: Under $25,000: Small Claims Court (or can choose BC Supreme Court) Over $25,000: BC Supreme Court  60 Reasonable Notice Damages: Basic Entitlements No reinstatement Basic entitlements are based on the contract, the terms and conditions at the time of dismissal, or both Salary Benefits—club memberships, meal expenses, rent-free residences Company vehicle—if personal use was included in the employee’s contract Insurance—life insurance, disability, drug, dental, etc. Bonuses Stock options Pension entitlements  61 Wrongful Dismissal: Other Types of Damages 1. Reasonable Notice Should be determined using Bardal factors 2. Moral (Wallace) Damages or Aggravated Damages Employer owes a duty of good faith and fairness in the manner of dismissal Based on proven damages (losses), not an arbitrary extension of notice 3. Punitive Damages Awarded for conduct that is harsh, vindictive, malicious, and reprehensible to deter bad behaviour  62 Bad Faith Dismissal Conduct that is untruthful, misleading, insensitive or humiliating: 1. False allegations of cause or incompetence 2. Harming the employee’s reputation or causing embarrassment at the time of dismissal 3. Harassment (including sexual) prior to dismissal 4. Dismissal connected to disability 5. Dismissal as reprisal  63 Duty to Mitigate Arises under the common law, not the ESC or ESA Employee has a duty to try to find comparable work to lessen the damages owed by the employer: Must take reasonable steps Onus is on the employer to prove failure to mitigate There were comparable jobs available The employee did not take reasonable steps to get those jobs  64 Constructive Dismissal 1. Employer makes a fundamental and unfavourable change to the contract without: providing reasonable notice, and explaining the consequences of rejecting the change OR 2. Employer conduct indicates desire to end the contract Employee is entitled to resign in response and claim damages Would a reasonable person find the changes imposed by the employer unreasonable and unfair? Constructive Dismissal What constitutes constructive dismissal? Substantial change to compensation Significant change in duties Geographic relocations and change in travel time Changes to hours and scheduling Layoffs Hostile work environment Duty to mitigate Employee may be required to continue working if: Salary is the same Working conditions are not substantially different or demeaning Personal relationships are not acrimonious Copyright © 2020 Emond Montgomery Publications. All rights reserved.  66 Avoiding Wrongful Dismissal Claims 1. Hire carefully 8. Handle terminations 2. Include and update termination professionally clauses 9. Provide outplacement 3. Use probationary periods counselling 4. Create a paper trail 10. Get a signed release, where possible 5. Provide reasonable notice of changes 11. Carefully consider all issues 6. Determine whether a just cause when providing a letter of claim is sustainable reference 7. Absent just cause, determine 12. Provide ROE in a timely appropriate notice manner CHAPTER 13 Dismissal With Cause Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 68 Overview of Just Cause Requirements Just cause: an employee breached the contract in such a fundamental way that the employer is no longer bound by its obligations of notice or pay. Near cause—misconduct or incompetence that falls short of just cause—will not permit a reduction in the notice period or pay in lieu of notice. Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 69 Overview of Just Cause Requirements (cont.) Sanctions must be proportional to the act of misconduct. Some acts of misconduct, such as theft or assault, may warrant dismissal for cause even if they only occur once. Most types of misconduct must occur more than once to constitute just cause. Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 70 Overview of Just Cause Requirements (cont.) Following rules of procedural fairness improves an employer’s chances of demonstrating just cause. The investigator must be impartial. Employees should be given an opportunity to respond to allegations. An allegation should be investigated promptly. Employers should avoid making ultimatums. Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 71 Overview of Just Cause Requirements (cont.) To ensure sanction is proportionate: 1. Consider whether misconduct was deliberate or a momentary error in judgment. 2. Assess misconduct in context of employee’s position, length of service, performance and disciplinary record, and previous conduct. 3. Consider extenuating circumstances. 4. Consider the employee’s response to the allegations. Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 72 Establishing Just Cause Under the Common Law Dishonesty Insolence and insubordination Incompatibility Off-duty conduct Conflict of interest Disobedience Absenteeism and lateness Sexual harassment Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 73 Establishing Just Cause Under the Common Law (cont.) Sexual harassment Psychological harassment (bullying) Intoxication Substance abuse Probationary employees Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 74 Grounds That Cannot Constitute Just Cause An employer may not dismiss an employee for asserting their statutory rights, including: Human rights (Human Rights Code). Rights under the Employment Standards Act, 2000, including pregnancy or parental leave. Rights under the Occupational Health and Safety Act, including right to refuse unsafe work. Rights related to absence from work for a work- related cause (Workplace Safety and Insurance Act, 1997). Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 75 Grounds That Cannot Constitute Just Cause Rights under the Pay Equity Act. Rights to engage in union-related activity under the Labour Relations Act, 1995. The remedy for dismissing an employee for asserting their rights under these statutes may be monetary damages, reinstatement, or both. Copyright © 2024 Emond Montgomery Publications. All rights reserved. CHAPTER 13 Dismissal With Cause Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 77 Overview of Just Cause Requirements Just cause: an employee breached the contract in such a fundamental way that the employer is no longer bound by its obligations of notice or pay. Near cause—misconduct or incompetence that falls short of just cause—will not permit a reduction in the notice period or pay in lieu of notice. Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 78 Overview of Just Cause Requirements (cont.) Sanctions must be proportional to the act of misconduct. Some acts of misconduct, such as theft or assault, may warrant dismissal for cause even if they only occur once. Most types of misconduct must occur more than once to constitute just cause. Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 79 Overview of Just Cause Requirements (cont.) Following rules of procedural fairness improves an employer’s chances of demonstrating just cause. The investigator must be impartial. Employees should be given an opportunity to respond to allegations. An allegation should be investigated promptly. Employers should avoid making ultimatums. Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 80 Overview of Just Cause Requirements (cont.) To ensure sanction is proportionate: 1. Consider whether misconduct was deliberate or a momentary error in judgment. 2. Assess misconduct in context of employee’s position, length of service, performance and disciplinary record, and previous conduct. 3. Consider extenuating circumstances. 4. Consider the employee’s response to the allegations. Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 81 Establishing Just Cause Under the Common Law Dishonesty Insolence and insubordination Incompatibility Off-duty conduct Conflict of interest Disobedience Absenteeism and lateness Sexual harassment Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 82 Establishing Just Cause Under the Common Law (cont.) Sexual harassment Psychological harassment (bullying) Intoxication Substance abuse Probationary employees Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 83 Grounds That Cannot Constitute Just Cause An employer may not dismiss an employee for asserting their statutory rights, including: Human rights (Human Rights Code). Rights under the Employment Standards Act, 2000, including pregnancy or parental leave. Rights under the Occupational Health and Safety Act, including right to refuse unsafe work. Rights related to absence from work for a work- related cause (Workplace Safety and Insurance Act, 1997). Copyright © 2024 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals 5e 84 Grounds That Cannot Constitute Just Cause Rights under the Pay Equity Act. Rights to engage in union-related activity under the Labour Relations Act, 1995. The remedy for dismissing an employee for asserting their rights under these statutes may be monetary damages, reinstatement, or both. Copyright © 2024 Emond Montgomery Publications. All rights reserved.