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HR Insights Newsletter Issue 9
Welcome
Summer2020
This issue focuses on workplace culture and employee management midst a pandemic.
HR Insights Welcome to SARC’s Human Resources and Labour Relations Newsletter. Join SARC Consultants each quarter as we explore topics important to managing employees and HR/LR risk.
CONTENTS
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In this article, SARC HR Consultant, Leanne Zacharias, explains how you and your management team can perform a workplace culture check-in.
Workplace Culture Check-in
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SARC LR Consultant, Marrion Wolff, addresses what employers can and should do if an employee refuses unsafe work.
What to do if an Employee Refuses ‘Unsafe’ Work
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Amy Gibson, lawyer with MLT Aikins, discusses the legalities related to employee layoffs and contract terminations.
Employment Contracts
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A B O U T T H E C O N S U LTA N T S About Marrion Marrion can assist SARC’s Regular and Associate Members with a variety of LR/HR issues, including progressive discipline, performance management, and duty to accommodate for unionized and non-unionized organizations. She can also provide specific
support in collective bargaining for unionized organizations. Accessing this service is free of charge and can minimize organizational risk. Having a quick check-in or a review done before decisions are made can save you time and money in the end.
Marrion Wolff SARC Labour Relations Consultant
About Leanne Leanne is available to assist SARC’s Regular and Associate Members who would like to have additional expertise on a variety of HR topics. Whether you have an internal HR professional or not, organizations can contact Leanne for best practices in the sector
to strengthen your workforce. Areas of service include recruitment and retention, organizational structure analysis and workforce planning, job descriptions, HR policies and procedures, compensation and total rewards, and succession planning. Leanne Zacharias SARC Human Resources Consultant
About Amy
Amy Gibson L a w y e r , M LT A i k i n s
Amy Gibson carries on a general labour and employment law practice. She advises employers on a variety of labour issues, including union certification drives, collective agreement interpretation, labour disputes, workplace policies, discipline and discharge, employment contracts,
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OH&S, workers’ compensation, labour standards and human rights. She has experience with a variety of court and administrative proceedings as well as representing clients before the Saskatchewan Labour Relations Board and in Canada Labour Code unjust dismissal adjudications.
Workplace Culture Check-Up
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uring this coronavirus pandemic, there have been many changes to all of our lives, both at work and at home. There has been changing public health guidelines and protocols, increased safety measures, disruption of normal activities, different family care-giving responsibilities, among many other adjustments to navigate in our daily lives. These all create an undercurrent of uncertainty and change—and change is challenging to navigate at the best of times.
Leanne Zacharias SARC Human Resources Consultant
Now that we’ve experienced the pandemic for a few months, it is a good time to do a check-in or checkup on your workplace health and culture. Being in crisis management mode is unsustainable long-term; it will burn you and your staff out! Since it appears that we may be in this for the long-haul, there’s an opportunity now to check in with how your staff are doing, and be intentional with the
culture of your workplace. As leaders, here are a few questions to reflect upon: What are people talking about in the workplace? Take a step back and listen. These conversations and tone can shed light on employees’ physical and mental health (for example, mention of not sleeping, a spouse losing their job, etc.). Stress and worry negatively affects our well-being, which impacts the safety of your other staff and clients. Some people may be expressing fears and concerns more than you are used to hearing, while others may be closing off or distancing themselves. Either situation requires leaders to listen and provide support to their staff. Encourage staff to access the Employee Assistance Program (EAP) if you have one, and invite them to talk to you or another leader that can help them. Do not ignore it when you notice an
Stress and worry negatively affects our well-being, which impacts the safety of your other staff and clients.
Looking for an Employee Assistance Plan for your organization? Contact Edith Crespin at ecrespin@ sarcan.sk.ca to learn more about SARC’s plan.
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employee struggling. What am I communicating to my team? People look for stability in times of uncertainty and change. As a leader, people look to you to lead them through the storm – to remind them of what is stable, and what they can look forward to. There are lots of negative messages in the media and social media, so make sure you connect yourself to the right sources of information that are credible and applicable to your location, and share the facts and how it applies to your organization. In the absence of communication and information comes fear, rumour, and gossip. This isn’t the time to stay quiet; instead, be honest and understanding but also assertive in communicating plans and priorities. Are we connected to our purpose? Now more than ever people need a purpose. Bring this purpose into
the day to day to remind people of the importance and meaning of their work, so your teams and organization can pull together instead of pulling apart. Being part of a team that is focused on their purpose can be especially encouraging at this time. Organizations are facing challenges in how they provide supports and services to clients, and this is a great opportunity to get creative input from your team on how to do this in the current environment. Ask “how can we…” instead of focusing on what we can’t do. Adversity can lead to resilience and new ways of doing things, with the potential to bring people together and come out of the storm stronger than ever. How is my physical and mental health? This looks different for everyone, but the point is, don’t ignore your self-care and stress management. Do the things that keep you healthy and recharge you. The culture of a HRLR NEWSLETTER
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workplace is set by the leader, so if you want a healthy workplace culture and staff, you need to model for your staff. Make sure you are taking breaks, connecting with others, and taking care of your physical and mental health in meaningful ways. You can’t pour from an empty cup. Just as we show kindness and compassion to others, don’t forget to show it to yourself as well. There’s no doubt that the current coronavirus pandemic is affecting workplaces around the world. And workplace culture has already been impacted in positive and negative ways. Reflecting on these questions will give you an indication of where your current workplace culture is at, and help you lead it in a positive direction.
What to do if an employee refuses ‘unsafe’ work
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ever has workplace safety been more important than at this time during the pandemic. Employers have had to go to extraordinary measures to keep both their business and their employees safe. In order to accomplish this, employers need to ensure they are adhering to the most up to date Public Health Orders and the General Workplace Guidelines that have been implemented by government. Information on how to keep your workplace safe can be found here. In addition to these guidelines, each organization may have implemented their own guidelines for their specific workplace. It’s important that employees know what the guidelines contain and how they have been implemented in their workplace. Having this information can help alleviate employee concerns for
safety; however, there may still be situations where an employee feels they are simply not safe at work. This can be an issue if employees are returning from a leave and have been absent from the workplace, and are now apprehensive of the conditions they will face. The Saskatchewan Employment Act contains provisions regarding an employee’s right to refuse dangerous work, and the process is outlined here. The following is an excerpt from the Saskatchewan Employment Act.
Right to Refuse You have the right to refuse to do any specific job or task which you have reasonable grounds to believe is unusually dangerous. The danger may be to you or to any other person. An unusual danger could include: •
A danger that is not normal for
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•
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the job (e.g., repairing a roof in dangerous winds); A danger that would normally stop work (e.g., operating a forklift with a flat tire); or A situation for which you are not properly trained, equipped, or experienced to do the work assigned (e.g., cleaning windows on a tall building with no fall protection equipment or training).
You cannot be fired or disciplined for using this right. Occupational Health and Safety provides procedures to be followed when refusing. Steps for Refusing Unusually Dangerous Work If your supervisor/employer asks you to perform a specific job or task that you have grounds to believe is unusually dangerous, follow these steps: 1. Tell your employer/supervisor that
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you are refusing work because of a health or safety concern. Do not leave the worksite without your employer’s permission. Contact your occupational health committee (OHC) or OHS representative if you cannot resolve the concern with the employer/supervisor. Your OHC will investigate the refusal, meet and vote to determine if you have reasonable grounds to refuse the work. (The vote must be unanimous for or against the refusal.). If the concern cannot be resolved within your workplace, contact an occupational health officer at the Occupational Health and Safety Division. The officer will investigate the refusal and rule on the matter.
In our current situation, employers will want to be sure their Occupational Health and Safety Committees are functioning well and are aware of their responsibilities: •
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Conducting regular inspections of the workplace to identify and control or eliminate safety hazards; Ensuring workers’ health and safety concerns are appropriately handled; Assisting workers with occupational health and safety related policies, procedures, and issues; Investigating incidents that may happen at the place of employment; and Investigating when someone refuses to perform a job or task that they believe is unusually dangerous.
As these steps indicate, an employee must do more than simply state “I feel unsafe”. An important
part of this process is listening to the employee’s concerns and investigating their issues. This may include reviewing training, procedures, and the use and availability of personal protective equipment (PPE).
the employee’s concerns have been investigated by the Occupational Health and Safety Committee or officer, the employee will have to go back to work.
In our current pandemic situation, the concern may actually be for family members and persons for whom the employee is acting as a caregiver. Or it may be that the employee has a medical condition that may put them at a higher risk. If this is the case, the employer will need to do further investigation to determine whether a medical or family status accommodation is appropriate. This investigation may include obtaining medical information and information on child care arrangements. When an employee makes a claim for an accommodation, they are required to provide reasonable documentation and/or information to substantiate that claim. An employer should accommodate the request, if possible, while they investigate the claim and make a determination as to whether there exists a duty to accommodate. Finally, provided the employer has taken all reasonable steps to ensure the workplace is safe and
Marrion Wolff
SARC Labour Relations Consultant
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Employment Contracts Lessons Learned from the Pandemic in Obtaining Organizational Flexibility an employer effectively has no option but to adjust operations so that they may continue to operate during an extreme unforeseen event like a global pandemic.
Amy Gibson MLT Aikins
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he COVID-19 pandemic has created unparalleled challenges for many organizations across the province. While some operations have been able to continue on with additional safety measures and precautions in place, others have been closed on a temporary basis with little or no notice. Inevitably, both realities have presented challenges for employers, including how best to incorporate existing employees into the “new normal” for the agency while still meeting employment obligations. Where an employer unilaterally reduces a non-union employee’s pay or benefits or reassigns work duties to such an extent that the essential nature of the employee’s position is altered, the employee may potentially consider their employment contract to have been repudiated and claim against their employer for constructive dismissal and monetary damages. This includes circumstances in which
In consideration of these unforeseen challenges, there are steps employers can take to ensure that they have more flexibility in adjusting employee hours of work and duties should Saskatchewan experience further disruptions in light of the COVID-19 pandemic, or other unforeseen extreme events in the future, thereby reducing the risk of a constructive dismissal claim. One of the best tools in an employer’s toolbox is their employment agreement with their employees. The following are some provisions which can assist in providing employers with the necessary flexibility in adjusting fundamental terms and conditions of employment. These provisions are appropriate for non-union operations or out-of-scope employees. Hours of Work An employment agreement often contains a provision which sets out the number of hours of work an employee will be expected to fulfill. To allow an employer to adjust these hours for unforeseen circumstances, the agreement should contain a provision which indicates that the employer reserves the right to reduce working hours upon providing the employee with the minimum
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notice requirements under The Saskatchewan Employment Act (as amended). The minimum notice required is generally the same as if the employee was being terminated without cause, and is dependent upon the employee’s length of service at the time the notice is provided. Termination and Layoff It is very important that an employment agreement contain provisions which address the termination of employment of the employee. With the challenges presented by the COVID-19 pandemic, it is also helpful to have these provisions address layoff requirements. In both instances, the termination and layoff provision should indicate that an employee may be laid off or terminated at any time by the employer, at its sole discretion and for any reason, on giving the employee advanced notice in writing in accordance with the minimums set out in The Saskatchewan Employment Act (as amended) and associated regulations, or by paying wages in lieu of such notice, where applicable. It should also indicate that in the event an employee is laid off or terminated without just cause, the employee will not be entitled to any additional notice or pay in lieu of notice including common law notice or otherwise, except as set out in The Saskatchewan Employment Act (as amended) and associated regulations.
Under The Saskatchewan Employment Act employees are entitled to certain minimum notice in correlation with their years of service (see s. 2-60). As noted in the article, Setting Out on the Right Foot – Important Employment Contract Provisions for Ending Employment Relationships from a prior issue of the HR Insights Newsletter (February 26, 2018), many employees can be entitled to more notice at common law. For long term employees, potentially significantly more. Without the latter component of the provision, it would be possible for the employee to pursue a claim for common law wrongful dismissal damages upon dismissal or layoff. Including this additional language in an employment agreement limits the agency’s exposure to just the minimum notice entitlements under The Saskatchewan Employment Act. Force Majeure Another provision which may assist employers in responding quickly to unforeseen events is a force majeure clause. Extreme events which are beyond the control of a contracting party are commonly referred to as force majeure events. As a starting point, contracting parties are at common law required to perform their agreed to obligations. At common law, excuses for non-performance exist but are narrowly interpreted and applied. An express force majeure provision allows allocation of the risk of non-
performance or delayed performance for specific unforeseen circumstances. These provisions are common in business transaction agreements, but may provide some assistance to employers as well. An effective force majeure provision will excuse an employer from performance of all obligations set out within the employment agreement, except for the obligations set out within The Saskatchewan Employment Act (as amended) and associated regulations. The minimum rights of employees provided for in these statutes cannot be contracted out of. Employers must abide by these minimum standards even when addressing extreme events. Further, a force majeure provision should set out a non-exhaustive listing of the types of unforeseen circumstances that the clause will address, including but not limited to, pandemics, epidemics, restraints by governments or governmental agencies, acts of terrorism, sabotage, war, insurrections, vandalism or riots, accidents, explosions, floods, storms, Acts of God and similar occurrences. Incorporating these provisions into your agency’s template employment agreement will assist the agency in adjusting to extraordinary operational challenges presented in the future. With respect to existing employees, or
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employees who are returning from layoff, it may be beneficial to explore options for placing these employees on new employment agreements which contain these provisions. It is recommended that employers obtain legal advice with respect to drafting the above noted provisions so as best to meet the needs of the agency. Further, legal advice should be obtained with respect to the manner in which existing or returning employees are placed on a new employment agreement to ensure appropriate consideration and enforceability.
See the SARC Manager Resource Area at sarcsarcan.ca/member_area for a Letter of Offer Template, which includes language for these new provisions, and can be adjusted to meet the needs of your organization.
SK Labour Update 2020 Webinar Series
EVENT TIME AND DATE
LOCATION
Webinar Registration
Venue: Online
October 6, 2020 - October 23, 2020 12:00 pm Details • This webinar series replaces the in-person session that was scheduled for May 2020; if you had already registered for the May event, MLTA should have sent you a notice in June to say that your registration was being transferred over to this October series (if you are not able to join the October series, you will have to contact MLTA to request a refund). • If you weren’t registered for the May session and are interested to register for the October series, simply enter “SARC50” when registering online to receive the 50% discount exclusive to SARC Members. For more information and to register, click here. HRLR NEWSLETTER
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