employer do's & don'ts

800 Park Place, 666 Burrard Street | Vancouver, BC V6C [email protected] | 604.806.0922 | www.ropergreyell.com

Thursday, January 7, 2016Fraser Valley CPA Association

RED FLAGS AND PRACTICAL POINTERS:What to do and what not to do as an employer

The purpose of this presentation is to provide an overview of this area of the law. This does not by any means constitute a full analysis of the law or an opinion of Roper Greyell LLP or any member of the firm on the points of law discussed. © Roper Greyell LLP 2016

James D. Kondopulos(604) 806-3865

[email protected]

800 Park Place, 666 Burrard Street | Vancouver, BC V6C [email protected] | 604.806.0922 | www.ropergreyell.com2

What are we going to review?

Popular misconceptions Major risks in the hiring process Pitfalls in employment contracts Do you have just cause for discharge? Avoiding constructive dismissal claims “I Quit!” Is it really the end? Suspicious sick leave claims Costs of failure to accommodate


Popular misconceptions

Employers have to play fair Employees can only be fired for just cause Entitlement to notice or pay in lieu on termination of

employment is based only on length of service Disabled employees or employees on pregnancy

leave cannot be fired All “harassment” is illegal “Contractors” are not entitled to notice or pay in lieu

on termination of employment Off-duty conduct is none of the employer’s business


Major risks in the hiring process

Unqualified candidates Negligent misrepresentation Potential human rights pitfalls


Pitfalls in employment contracts

If you have a written contract that does not protect the employer’s interests, it will not be useful

If there is no written contract of employment or no written provision setting out entitlement to notice or pay in lieu on termination of employment, a term as to reasonable notice or pay in lieu will be implied

If you have a written contract or provision that is unenforceable, it will be considered void


Do you have just cause for discharge?

Conduct which is incompatible with the employee’s duties and goes to root of the employment relationship – employment cannot continue

Misconception – can only be discharged if “written up three times”

Onus of proof is on the employer Investigate promptly and document everything Give warnings unless you are dealing with extreme

misconduct Lack of proper performance management may result

in an inability to discharge for just cause


Avoiding constructive dismissal claims

Constructive dismissal results from unilateral, fundamental change or changes to the terms and conditions of employment

For example, a significant change to compensation or a demotion


“I Quit!” Is it really the end?

Subjective and objective components Context not only relevant but it is critical Test of reasonableness Wrongful dismissal damages may be

awarded and possibly also moral damages (unfairness or bad faith of a marked degree which results in damage or loss)


Suspicious sick leave claims

Ask for a doctor’s certificate to substantiate the claim

Insist on a certificate that clearly speaks to present and future ability to work– including limitations and/or restrictions and prognosis (not diagnosis)

Offer accommodated, modified, light or transitional duties and be open to other accommodations (e.g. modified schedule, duties or workspace)

Investigate as necessary Maintain and, where appropriate, demand

communication


Costs of failure to accommodate

Where employee cannot work or has limited ability to work on account of disability, employer has a duty to accommodate unless it would cause undue hardship

Thoroughly investigate and document possible accommodations

Duty to inquire Duty to accommodate is met if business would be

hampered excessively, if employee is still unable to work in spite of accommodations, or if he or she refuses to co-operate and causes process to founder


QUESTIONS?

James D. Kondopulos(604) 806-3865

[email protected]

employer do's & don'ts

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