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Critical policy issues in human resource management


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Employment termination policies and best practices
Implementing policies and ensuring that the policies are respected
Balancing human rights issues and Nation/Community by-laws
Employee safety issues and behaviour issues in the workplace
Preparing proper documentation
Aboriginal law issues

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Critical policy issues in human resource management

  1. 1. Critical Policy Issues in HumanResource Management Infonex Winnipeg 10:30 am Sept 10, 2008 Chris Hylton, Principal CG Hylton & Associates Inc. 1
  2. 2. Agenda Employment termination policies and best practices Implementing policies and ensuring that the policies are respected Balancing human rights issues and Nation/Community by-laws Employee safety issues and behaviour issues in the workplace Preparing proper documentation Aboriginal law issuesNB: Chris is not a lawyer 2
  3. 3. Employment termination policies and best practices Reasonable notice (if no just cause) by both employer and employee Employer is required to give reasonable notice or pay (severance) in lieu of notice  may dismiss for any reason unless it violates human rights legislation Reasonable notice standard set by –  Employment Standards Act  The employment contract  Common law (similar precedent cases), or  Collective agreement 3
  4. 4.  Just cause dismissal requires no notice Dismissal without notice if –  Incompetence or failure to perform (document, warnings, don’t approve behaviour)  Misconduct – dishonesty, disrespect, conflict of interest, sexual harassment etc  Not – personality conflict 4
  5. 5.  An employee discharged without adequate notice can sue for wrongful dismissal An employee can leave without notice when required to work in dangerous conditions or when work involves immoral or illegal activities 5
  6. 6.  Constructive dismissal - employment contract may be breached when nature of job changes or working conditions become intolerable. Compensation based on reasonable notice, lost benefits and pension rights  Employee must mitigate losses 6
  7. 7. Termination With cause and without cause Organizational restructuring Loss of funding Terms and conditions of employment contract HR Policy …all will impact ability to terminate 7
  8. 8. Employment Standards each Prov/Territory Statutes designed to protect employees by setting minimum standards for:  safety  Wages, hours of work, overtime,  child labour  Termination  Penalties  Just cause 8
  9. 9. Ee Notice to Employer Less than 3 mos – nil > 3 mos, < 2 yrs – one week > 2 yrs – two weeks 9
  10. 10. Employer Notice to Ee > 3 mos 1 week or pay in lieu Two years or more 2 weeks Four years or more 4 weeks Six years or more 5 weeks Eight years or more 6 weeks Ten years or more 8 weeks More like 3 weeks / yr is common in courts 10
  11. 11. Implementing policies and ensuring that the policiesare respected Policy on policy changes 11
  12. 12. Balancing Human Rights issues andNation/Community by-laws Has anyone any human rights lawsuit stories they would like to share? 12
  13. 13. DO’S & DON’T’S Human Rights DONT’S  DO’S AGE Birth Certificates  If applicant has reached the Age or Birth date majority of age SEX Female or Male on applications  If applicant can meet the attendance requirements Pregnancy, childbirth, birth control, etc MARITAL STATUS  If there are any circumstances that applicant can not meet If applicant is single, married,etc attendance requirements About spouse’s employment 13
  14. 14. DO’S & DONT’ Human Rights DONT’S  DO’S FAMILY STATUS Number of children or  If the applicant would dependants be able to work the Child care arrangements hours required or if can ETHNIC ORIGIN work overtime Birthplace, nationality, relatives Whether born in Canada  If applicant is legally Immigration Status entitled to work in Proof of Citizenship Canada. 14
  15. 15. DO’S & DONT’S DONT’S  DO’S LANGUAGE Mother tongue  If applicant Where language skills obtained understands, reads, RACE OR COLOUR writes and speaks Anything that would indicate race or colour, including colour of eyes, skin, languages require or hair for job RELIGION  Required work Religious affiliation, church, shifts, whether the membership, etc schedule would affect the applicant 15
  16. 16. Dont’s Do’s Disabilities, limitations or  If applicant has any health problems condition that can affect the Whether applicant uses ability to do the job drinks or uses drugs  If applicant has any Whether applicant has AIDS, condition that should be or is HIV positive considered in selection MEDICAL INFORMATION If under physician’s care Name of family doctor If receiving counseling or therapy 16
  17. 17. DRUG AND ALCOHOL TESTINGEmployers often want to test employees and prospective employees for drug and alcohol use. Examples: pre- employment testing, random testing on the job, or testing of individuals whom they suspect of drug or alcohol use. It is important for employers and employees to know that, under human rights law, drug and alcohol testing are only allowed in certain circumstances. BFOR, post eventAb Commission’s position on testingDrug and alcohol dependencies are forms of disability within the meaning of the Human Rights, Citizenship and Multiculturism Act.Human rights laws prohibits discrimination based on disability. In general, asking about or testing for a condition that is a physical or mental disability is allowed only where the disability would affect the employee’s ability to do their job. 17
  18. 18. TEST – No Looking Drug and alcohol testing are only allowable in certain circumstances. What are they? 18
  19. 19. THE ENTROP CASE The Entrop decision, from the Ontario Court of Appeal, is the leading court decision on drug and alcohol testing with respect to human rights in workplace. The Entrop case addressed drug and alcohol testing policies that were created to deal with safety and performance concerns on the job. In the Entrop case, the court distinguished between drug and alcohol testing because a positive breathalyzer test for alcohol shows a current impairment, and therefore is acceptable for safety sensitive positions. 19
  20. 20. ELIZABETH METIS SETTLEMENT CASE In the case of Alberta Human Rights and Citizenship Commission v. Elizabeth Metis Settlement, The Court of Queen’s Bench found that an employer’s drug and alcohol testing policy was not discriminatory In this case, the employer had implemented a drug and alcohol testing policy in order to deal with the alcohol and drug problem in the community 20
  21. 21. HARRASMENT IN THE WORKPLACE What is Harassment? Harassment occurs when someone is subjected to unwelcome verbal or physical conduct. Harassment is a form of discrimination, which is prohibited in most jurisdictions under the Human Rights Acts under the following grounds: Race Religious beliefs Color Gender Physical or mental disability Age Ancestry Place of Origin Marital status Source of income Family status Sexual orientation 21
  22. 22. EXAMPLES OF HARRASMENT Verbal or physical abuse, threats, derogatory remarks, jokes, innuendo or taunts about appearance or beliefs. The display of pornographic, racist or offensive images. Practical jokes that result in awkwardness or embarrassment. Unwelcome invitations or requests, either indirect or explicit. 22
  23. 23. Discrimination has occurred if:Someone is refused a job, promotion or a training opportunity because of resistance to harassment based on any of the grounds listed aboveSomeone is refused a place to live or denied services normally provided to members of the public based on an of the grounds listed aboveThe harassment causes an unfavorable influence on decisions affecting job performance; orThe harassment is insulting or intimidating.Onus on the person experiencing the harassment to inform the harasser that the behaviour is unwelcome. 23
  24. 24. IN THE WORKPLACE When a supervisor harasses an employee, it is an abuse of authority and the employer may be held responsible. It is inappropriate behavior that may deny equal employment opportunity to the employee who is harassed. When a co-worker harasses another employee, the employer may be held responsible. Harassment is not new What is new is a growing awareness of this serious problem in the workplace. Harassment can prove costly to employers through lost productivity, lost time through stress-related illness, frequent staff turnover and lowered staff morale. 24
  25. 25. SEXUAL HARASSMENT This is a form of discrimination under the Human Rights on the grounds of gender. Sexual harassment is unwelcome sexual conduct. Behaviour which is acceptable to both parties involved, such as flirtation, chit-chat or good-natured jesting, would not be considered sexual harassment. 25
  26. 26. Employee safety issues and behaviourissues in the workplace 26
  27. 27. Occupational Health & Safety The idea behind all OHS programs is to make the workplace as hazard free as possible OHS policies set out rights and responsibilities on the part of the employee & employer 27
  28. 28. OHS Program Canada Labour Code  Canada Occupational Health & Safety Regulations Provincial regulations similar in all provinces Nations covered by federal code, but depending on set-up may also be required to meet provincial requirements 28
  29. 29. Typical OHS Program1. OHS policy written and in place2. OHS training for staff completed3. OHS committee or worker representative in place4. Injury reporting system in place5. Early and safe return-to-work program or policy in place 29
  30. 30. Components of OHS Program not just written policy but all staff must be fully trained and aware of program/policy Documentation of regular meetings, evaluations, reports must be kept Does anyone know why safety meetings are good? 30
  31. 31. Penalties In almost every province there are penalties for non-compliance Hazards can include: building safety, electrical, fire, lighting, equipment, fumes Drug & Alcoholism 31
  32. 32. Preparing Proper Documentation Good Policies Good Personnel letters and files Filing system Why? Who has a good system? Who has no system or a bad system? 32
  33. 33. Discipline, Grievance & Termination All rely on good records, why? 33
  34. 34. Discipline Before one may discipline, employee needs to know what they were supposed to do and/or not supposed to do  Job descriptions, OHS & HR policies Need to have clear process and policy for measuring performance (good and bad)  Performance Appraisal System 34
  35. 35. Discipline Disciple problems are result of poor management, poor instructions, and/or inconsistency in application of policies Do employees really get up each morning and say they want to do a bad job at work? All policies and procedures should be followed consistently and fairly Discipline and rewards should occur in a timely manner, why wait until annual review? 35
  36. 36. Progressive DisciplineThree stages1. Verbal warning (memo in ee file)2. Written notice (original letter given to ee copy in ee file)3. Written final notice (letter in file) followed by 36
  37. 37. Discipline Policy Manager should inform HR Manager of discipline issue before first warning (if no HR Manager – Chief, Band Manager, CEO) If you have HR Manager, they should sit in on verbal warning and second and third warning to act as witness Good to run past legal as well 37
  38. 38. Discipline Policy Some offences are cause for immediate dismissal and should not go through discipline process – ask lawyer Conditions for “Dismissal with Cause” should be clearly stated in HR Policy 38
  39. 39. Aboriginal law issues Does anyone have any stories to tell about Aboriginal Law? 39
  40. 40.  Please call if you have any HR, or workplace issue that you are overwhelmed with We can help you We also are pleased to do Free Workshops for your organization (some limits apply) Let us know what your needs are and we will make it happen! 40
  41. 41.  HR Consulting  Benefits, Pensions, Job Descriptions EAP Salary Grids  Strategic Wellness at Work Planning Staff Morale  Drug and Alcohol Training and programs Workshops  Dept re-orgs Tel 403 264 5288  Leadership chris@hylton.cacompensation 41
  42. 42. chris@hylton.ca800 449-5866 42