Human Resources
YPK – Lunch & Learn
July 25, 2012
Terry Becker
Beckerlawyers.ca
Human Resources
Policies & Procedures
• You’ve got them whether you know it or not!
Who’s covered?
• All of your employees UNLESS they are an independent
contractor (but are they really?) or if they are a:
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Architect
Chartered Accountant
Lawyer
Land Surveyor
Etc.
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Sample Policy Suggestions
 Holidays (including Stat holidays)
- There are 9 stats NOT 12
 Sick Time
- Do you pay for?
 Coffee Breaks – or ANY breaks
 Overtime?
 Paydays and Payroll Records
 Start and End time (can be different than shop hours)
• When are they expected to be AT vs READY for work?
E – Policy (Facebook, Twitter, Email)?
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You DO provide these “Leaves”
• Pregnancy
• Parental
• Family Responsibility
• Compassionate Care
• Bereavement
• Jury Duty
• Reservists
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“You MAY NOT terminate an
employee or change a condition of
employment, without the employee’s
written consent, because of a leave
or pregnancy”
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Lay-off OR Termination?
• After 3 months of consecutive employment an employee
may be eligible for compensation, written working notice, or
a combination of the two.
• No compensation is required when an employee quits,
retires or is terminated for just cause. It’s up to the
employer to show termination was for just cause.
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FAQ’s
 May an employer require an employee to work OT?
 Is an employer required to pay OT for working a weekend?
 Does an employer have to schedule shifts according to
seniority?
 Is an employee required to give notice of termination to
employer?
 Is the time spent getting to & from a worksite considered to
be work?
 Can an employer deduct an administrative overpayment to
an employee?
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Assume NOTHING.
Companies wouldn’t need entire departments dedicated to
HR if there were no issues.
There is no such thing as “common sense”.
Put this link directly on your desktop
http://www.labour.gov.bc.ca/esb/esaguide/welcome.htm
The employers call line for help is 1-800-663-3316
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“Thank You”
Look out for the following L&L opportunities:
August 1 – Estate & Succession Planning
Aug 8 – Do it yourself Collections
Aug 15 - Expanding your business
Aug 22 - Business planning
tbecker@beckerlawyers.ca – www.beckerlawyers.ca
Beckerlawyers.ca
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Employment Contracts
YPK – Lunch & Learn
July 25, 2012
Eric Mollema
Beckerlawyers.ca
Different strokes for different folks
Employment agreements differ for
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Normal employees
Critical employees
Management staff (senior managers)
Employees who are also Directors
Employees who are also Shareholders
Employees who are also Directors and Shareholders
For a start:
• Identify the parties
• Describe the employee’s skillset (What does the employee claim to be
able to do)
• Describe the fit (How does this skillset merge with the company’s
requirement)
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What you MUST cover
•Appointment
•Term
•Post
•Remuneration
•Termination
•Resignation
• Rest is regulated by the B.C. Employment Standards Act, RSBC 1996
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What you SHOULD cover
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Duties
Reporting
Renewal
Renegotiation
Annual review
Benefits
– Bonuses, Increases, RRSP contributions, Professional development,
• Annual leave
– Paid vs Unpaid
• Expenses
– What is the company paying for and what not
• Sett-off
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Protection
• Non completion
• Non-disclosure
• Secrecy
• Ownership of documents and records
• Ownership of rights
– IP – trademarks, patents, copyrights, improvements
• Acknowledgements
• Notification of claims
• Good faith
• Survival of obligations
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General
• Applicable law
• Severability
• Presumption against drafter
• Notices
• No condonation no waiver
• Independent legal advice
• Valid agreement – supersedes all others
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“Thank You”
Look out for the following L&L opportunities:
August 1 – Estate & Succession Planning
Aug 8 – Do it yourself Collections
Aug 15 - Expanding your business
Aug 22 - Business planning
emollema@beckerlawyers.ca – www.beckerlawyers.ca
Beckerlawyers.ca
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Employment Litigation
YPK – Lunch & Learn
July 25, 2012
Ryan Dueckman
Beckerlawyers.ca
Fundamentals of Employment
The Employment relationship is actually a hybrid
Contractual/Legislative Relationship
The fundamentals of an employment contract:
• For an indefinite period,
• Terminable summarily for cause, or
• in any case on reasonable notice
Other implied terms:
• No right to discipline through suspension or reprimand unless
contracted for
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Implied Obligations of Employee
• Duty to Work
• There is a reason you pay them
• Obedience
• They are required to follow any lawful orders within the scope of their employment.
• Competence
• Do not need to be as competent as you, there must be a fair test of the employee’s
abilities
• Morality
• Duty not to engage in immoral conduct, on or off the job, where such conduct is
wholly incompatible with their duties.
• Good Faith and Fidelity
• Duty not to act in a conflict or share information with competitors
• Indemnification for Negligence
• Rare and not covered by this talk
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Time to say goodbye…
Two ways to terminate employment contract:
1.Without Cause
• Requires notice
• Can be for any reason
2.With Cause
• Requires a violation of the terms of employment by the employee which constitutes a
“repudiation of the essential obligations owing under the contract”
• Conduct must “go to the root of the employment contract” resulting in a relationship
too fractured to expect the employer to provide a second chance.
• Key is “proportionality” - punishment must fit the crime.
• Onus is on the employer to prove
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Without Cause
No set formula for determining what kind of notice is
required
However, the Court generally uses the following three factors to
determine reasonable notice:
1.
2.
3.
Length of Service;
Character of Employment; and
Availability of similar employment given the training and education of the
employee.
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With Cause
1. Willful Disobedience
2. Insolence and Insubordination
The disobedience in either of these categories must:
1.
2.
3.
Be willful and purposeful,
Be proportional to warrant a firing, and
Go to the root of the employment contract!
Good Examples:
1.
2.
Repeatedly refusing to perform requested maintenance on a plane, and
Repeatedly refusing to follow critical procedures
Bad Examples:
1.
2.
Failure to put away tools after a shift, and
Changing the shop floor radio station to teen pop
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With Cause (Continued)
4. Incompetence
5. Intoxication
6. Absenteeism or Lateness
For any of these three, you must be sure that you do not accept or
condone the conduct by not dismissing the employee or delaying the
dismissal.
To succeed in absenteeism or intoxication, you must:
1. Warn the employee about conduct
2. Warn the employee that their job is in jeopardy
3. Give the employee reasonable time to correct the conduct.
Do not delay in taking action. This will be interpreted by the Courts as
condoning the conduct.
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Steps to protect yourself
1. Document Everything!
2. Do not prevent the employee from seeking further employment,
and
3. Avoid Bad Faith in With Cause dismissals
“employers ought to be candid, reasonable, honest and forthright with their employees and
should refrain from engaging in conduct that is unfair or in bad faith by being, for
example, untruthful, misleading or unduly sensitive.”
Bad faith includes:
1.
2.
3.
4.
Dismissing an employee shortly after giving him or her a positive performance
review,
Hiring a replacement worker for a temporarily laid-off employee without telling the
employee of the termination,
Abolishing the employee’s position while the employee is on vacation, and then
alleging cause after the termination without basis, and
Wrongfully accusing the employee of theft or fraud and telling potential employers
about it.
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“Thank You”
Look out for the following L&L opportunities:
August 1 – Estate & Succession Planning
Aug 8 – Do it yourself Collections
Aug 15 - Expanding your business
Aug 22 - Business planning
rdueckman@beckerlawyers.ca – www.beckerlawyers.ca
Beckerlawyers.ca
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