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HR Compliancy


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HR Compliancy

  1. 1. HR Compliance: Legal Issues Overview September 24, 2013 Matthew Vella, Principal, Vella Labour Law Maysa Hawwash, Solutions Manager, Drake International For audio, it is recommended you dial in A copy of the slides + recording will be available post webinar AUDIO: 1-877-668-4493 Access Code: 666 427 803 Event Password: 1234 WebEx Support: 1-866-863-3910
  2. 2. For more information, call 416.216.1067 Topics • Employee Acquisition • Employee Management • Terminations
  3. 3. For more information, call 416.216.1067 Employee Acquisition • Job Postings and Interviews • Some key mistakes that employers make during the acquisition of a new employee – Contracts are only for management – “Offer letters” suffice as contracts – Contracts are to be given out with the employee’s first day paperwork
  4. 4. For more information, call 416.216.1067 Contracts are Only for Management • NO! • Contracts are an integral part over every employment relationship. Setting out the terms and conditions of employment is integral. • We have seen a dramatic increase in law suits from blue collar employees and administrative staff.
  5. 5. For more information, call 416.216.1067 Offer Letters – Don’t Use Them • Avoid very short offer letters • You have now “contracted” with the employee but only for the terms set out therein • Possible ramifications: – No temporary layoffs – The sky is the limit on reasonable notice damages – Alterations of position will vitiate the contract
  6. 6. For more information, call 416.216.1067 Offer Letters Followed by Contracts • This is a crucial pitfall • John is given an offer letter on June 15th stating that he will commence his role as director of IT on July 5th at a salary of $78, 000.00. • On July 5th John attends work and is given a contract with various other terms. • The July 5th contract is void. John already had a contract (the offer letter) and the moment he set foot at work that contract became binding. The July 5th contract suffers from a failure of legal consideration and will be unenforceable when John is terminated
  7. 7. For more information, call 416.216.1067 Contracts on the First Day of the Job • Often employees are given a package on their first day of work • Do not include the employment contract in this package.
  8. 8. For more information, call 416.216.1067 What Do We Do? • Provide an offer letter that specifically says it is subject to (and that the employee’s new position is subject to) the signing of a full employment contract • Provide the employment contract prior to the employee commencing work. • Any policies that are incorporated into the contract by reference should also be provided to the employee at this time
  9. 9. For more information, call 416.216.1067 Contract Pitfalls • Contracts can (and should) include provisions respecting a broad variety of topics, but contracts must be tailored to the position for which they are being used. • An ESA Mins clause on termination and severance pay limiting the employee to the statutory minimum payments on termination • A layoff provisions allowing for temporary layoffs • Don’t use templates. Period.
  10. 10. For more information, call 416.216.1067 Employee Management • Proper methods of managing for positive workforce and employee engagement • From a legal perspective when we talk about employee management we are talking about either: – Disciplinary issues or – Performance issues The two are not the same and should not be treated the same
  11. 11. For more information, call 416.216.1067 Employee Management • Disciplinary issues should follow a program of some sort of progressive discipline • Escalate from verbal warnings to written, to further written to suspensions and terminations • For non-culpable behavior it is different. Coaching, warnings, performance improvement plans, termination but almost never for cause • In Ontario at least, “for cause” terminations based on performance issues are almost impossible to win unless the employee is relatively new
  12. 12. For more information, call 416.216.1067 Employee Management – Pitfalls • Micro-managed employees will take stress leaves, file harassment complaints, and make constructive dismissal suits • You have the right to manage. You have the right to discipline. But don’t overdue it. • Constructive dismissal based on “poisoned working environment” • Beware of overzealous discipline • Beware of PIPS that God himself could not possibly complete
  13. 13. For more information, call 416.216.1067 Terminations • No problem, because you have a contract! • If an employment contract has a valid and enforceable termination provision you will save a lot of headache and legal fees. • If you do not have a contract then you need to figure out a reasonable severance package
  14. 14. For more information, call 416.216.1067 Terminations Common pitfalls/mistakes • Telling an employee why he or she was fired when the termination was no for cause. • Not obtaining a release because you think your severance package is reasonable so the employee won’t sue. • Seeking a release when all that is provided is that the employee was entitled to under his contract or pursuant to the ESA.
  15. 15. For more information, call 416.216.1067 Termination Pitfalls • The other major pitfall that I encounter all the time is the “one size fits all” approach. • “We provide two weeks per year of service and never more” • The courts use factors called Bardal factors to determine reasonable notice. Those factors are: age, length of service, position, qualifications and availability of similar employment.
  16. 16. For more information, call 416.216.1067 Termination Pitfalls Public terminations • Emails about the termination that slander or embarrass the employee even after she is gone • Lying during terminations or about the reason for the termination • Terminations based on zero tolerance policies • Terminations based on accusations of misconduct for which the employee was not given a chance to respond prior to termination
  17. 17. For more information, call 416.216.1067 Questions?
  18. 18. For more information, call 416.216.1067 Free Offer We’re offering a FREE 1-hour HR Audit Contact Maysa to take advantage of this exclusive offer! or at 416.216.1067
  19. 19. Thank You For Attending For questions, please contact Maysa Hawwash National Manager – Talent Management Solutions 416.216.1067