HR Insights - February 2018

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HR

NEWS LETTER HR Insights Welcome to SARC’s new Human Resources and Labour Relations Newsletter.

Join SARC Consultants each quarter as we explore topics important to managing employees and HR/LR risk.

Useful Tools and Tips Inside you will find all kinds of helpful Human Resources and Labour Relations information

Setting Out on the Right Foot MLT Aikins’ own Amy Gibson shares important employment contract provisions for ending employment relationships - see inside for more

Ways Employment Ends by Marrion Wolff

Welcome to HR Insights

Every quarter, SARC’s new Human Resources and Labour Relations newsletter will explore

Prepare for situations before they arise

and Ashley Topuschak

a different topics. This issue focuses on the end of working relationships and how to

Resignation

Learn how, what and when to document

ensure you are ready for any situation that

When the employee decides to end the relationship

Increase your knowledge of HR/LR information

might come your way.

This issue will look at:

Retirement When the employee is nearing the end of their career

Biographies of Consultants

Termination When the employer decides to end the relationship

SARC has Labour Relations and Human Resources Consultants on staff to assist with your LR/HR needs.

Job Abandonment

Marrion Wolff - Labour Relations

Ashley Topuschak - Human Resources

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 nonunionized 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.

Ashley 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 Ashley 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.

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HR/LR Insights

Sooner or later all working relationships must end. Sometimes this occurs naturally through a retirement. Other times the ending is forced by either the employer or the employee.

When an employee simply stops coming to work

Layoff A variety of circumstances can lead to layoffs

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Resignation In these cases, the employee has decided to end the relationship, for whatever reason they may have.

Retirement Now more than ever, employees are choosing to work longer than aged 65 to meet their personal and financial goals.

Employees are required under the Saskatchewan Employment Act to give two weeks’ notice of their intention to quit the position, provided they have been continuously employed in the position for at least 13 weeks. They are also required to provide the date of their last day of work. Receiving this notice is helpful to the employer; however, there are no provisions for penalties if the employee decides not to

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HR/LR Insights

give notice.

Sometimes an employee gives their notice verbally, and the employer has nothing in writing. In these cases it’s best to ask for a written resignation, particularly if the verbal notice was given when the employee was extremely upset or feeling pressured.

This type of resignation may be considered to have been tendered while under duress, in which case the employer would be expected to wait

until the employee has settled down to discuss the resignation.

Some Collective Bargaining Agreements will contain a cooling down period during which the employee can rescind their resignation. Even without such a stipulation, the employer should allow the employee time to reconsider their remarks and possibly rescind their resignation.

The landscape for retirement changed in Saskatchewan on November 17, 2007 when The Saskatchewan Human Rights Code was amended to change the definition of age. The change meant that employers could no longer stipulate age 65 the mandatory age for retirement. Employees can choose to work longer to meet their personal goals and needs or can still choose to retire when turning 65 or earlier as meets their individual circumstance.

A key piece for managing risk is that as with other aspects of the human rights, employers may have a duty to accommodate. So if an employee is unable to perform all aspects of their job because of age, the employer and the employee may need to work through the steps of accommodation.

This can be complex, so make sure to understand accommodation processes and potentially seek legal advice.

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What can your policy and practices include?

• Identify when employees become eligible, but are not required, to retire • As a practice employers may be cautious about asking employees about when they plan to retire, and validly so, given that you never want to coerce or require retirement. On the flip side, employees sometimes do not know how to go about starting the conversation. Then from an HR planning perspective, preparing for future workforce gaps is important. Tackle these challenges simply.

Incorporate a conversation with all employees about their 3 or 5-year plans as part of yearly performance appraisals.

• Identify in policy that employees who are eligible to retire provide longer notice of their intention to retire such as 3 months minimum. This is for workforce planning and to prepare for a smooth transition for both the employee and the employer.

• Ensure you remain in compliance with Canada Pension Plan deductions for employees who choose to collect CPP benefits while continuing to work. Refer to the Canada Pension Plan website for information on the Post Retirement Benefit.

• Identify if and what practices you will have in place to recognize retiring employees. This could include a gift and how the value of the gift is calculated (i.e. based on years of service to a maximum amount).

Consider as well parameters around the type of function that will be held to honour the employee and the costs. Refer to the CRA Employers’ Taxable Benefits Guide.

• Identify what, if any, payouts you would include for retiring employees beyond what is legislatively required. Although employees may seek payout of sick leave benefits, this is not recommended as a practice.

• Manage your costs by ensuring you are clear that any retired employees who are re-hired do not retain any entitlements and that it is a new start date. In particular for unionized employees, review your CBA for language identifying on what basis retired employees go on the casual list. For example, is it automatic at retirement or do they have to apply? Will they have any preferential placement on the list or will they start at the bottom?

Options to consider • Does it make sense for your organization to offer voluntary early retirement incentives (i.e. lump sum payment, unreduced pension)? You’ll need to understand what impact this would have on pension and benefits for the employee under your plans and policies as well as the processes you’d need to put in place to manage this option well and transparently for both the employer and the employee. It must clearly be an option for employees and not a requirement to participate.

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HR/LR Insights

• Can you offer phased in retirement? Again, you’ll need to be clear about the same factors as with retirement incentives as well as the effects on an individual’s paid leave time.

• Does the position warrant a formal transition plan to facilitate the transfer of knowledge? This could include documentation of information, mentoring/ coaching, job shadowing etc.

Terminations In these cases, the employer has decided to end the relationship, and again, for a variety of reasons.

The termination may be a result of a Progressive Discipline process, where the employee has either not improved their poor performance, or ceased their bad behaviour.

This would be in spite of receiving progressively harsher discipline along the way. Or there may have been one very serious incident that was determined to be gross misconduct that resulted in immediate termination. In any case, the onus will be on the employer to provide the burden of proof that would support the decision to terminate.

Each of these situations, and others of a similar nature, require a methodical and well documented response from the employer in order to ensure the termination is defendable.

Employers must ensure that the employee’s rights are protected and that the process is fair and the employer did not act in an arbitrary manner.

If the termination is with cause, then there is no severance or notice paid to the employee. If the termination is without cause, the Saskatchewan Employment Act outlines the minimum amount of notice that must be paid to the employee, based on the employee’s length of service.

Your Collective Bargaining Agreement may also specify the amount of notice this is required for termination without cause. There is an extensive amount of information in SARC’s online resources covering various aspects of progressive discipline and it’s a good idea to check it out if you find yourself in this situation with an employee.

Interested in learning more about Progressive Discipline?

SARC Learning Central is pleased to be offering a one-day workshop on progressive discipline on February 27 in Saskatoon and March 8 in Regina.

This interactive workshop is facilitated

by Marrion Wolff.

Click here to learn more or to register.

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Abandonment of Job

Layoffs Employers may need to lay off employees for a variety of external reasons necessitating a change such as budget limitations, program changes requiring restructuring, diminished requirements for work or mergers. The Saskatchewan Employment Act defines layoff as the temporary interruption by an employer of the services of an employee for a period exceeding six consecutive working days. Employers are required to provide notice to employees who have worked for at least 13 weeks of the layoff or pay in lieu of notice.

Layoffs and terminations are treated the same under the SEA so employers are required to pay out wages owed and any vacation or public holiday pay owed. The layoff may have a specific end date or may be indefinite. If it is more than 14 consecutive days and you recall the employee back to work then the period of employment under the SEA restarts at zero for notice provisions.

Employers can of course choose to provide more favourable parameters than the Act.

individuals automatically receive when they are called back and if this is dependent on the length of the layoff. For example, at what point are they considered a new employee with a new contract, probation period to complete and waiting period for any pension and benefits offered?

Unionized organizations will follow their CBA which typically includes provisions related to when seniority is broken by lay-off, bumping rights in the case of lay-off, and recall provisions.

There are also special rules to be aware of for group termination. This applies when employers are laying off 10 or more employees within a four-week period and the layoff is longer than 26 weeks or has no recall date. The additional requirements relate to notice periods and notifying the Minister of Labour Relations and Workplace Safety. Some exceptions also apply. For this specific scenario and requirements, read more from Saskatchewan Employment Standards.

Some considerations for policy are identifying what

Sometimes an employee simply does not return to work from a leave, or simply stops coming to work.

If you are unable to contact the employee, a decision must be made regarding their position.

the employee’s reasons for not attending work or contacting their employer. Some of the reasons may involve circumstances that were beyond their control, such as illness or family crisis.

Employers are advised to have an “Absent Without Leave” Policy that would outline the steps that must be taken before the employee can be declared terminated due to abandonment of their job. The policy would state what process is followed to contact the employee on day 1, then day 2 etc.

It may end with a registered letter sent to the employee’s last address that allows the employee to return to their positon if they contact the employer by a specific date.

The reasons why they are not at work may also trigger a Duty to Accommodate situation where the employee is absent due to a disability, mental illness or family problems.

In any situation when an employee is absent from work, the employer will be required to consider

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Each situation will need to be considered on its own and there is no blanket policy that can dictate how every situation will be handled. Eventually, if no contact is made and the employer is unable to make contact, then after a reasonable length of time the employee would be declared terminated due to abandonment of job.

Interested in learning about

Employment Standards?

The Saskatchewan Employment Standards Division offers free online training webinars providing basic information about a variety of topics in the standards

such as schedules, hours of work, vacation, overtime, payment of wages, layoff and termination etc.

See the upcoming schedule from

February to June or view previously recorded webinars by clicking here.

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Setting Out

On the Right Foot Important employment contract provisions for ending employment relationships By: Amy Gibson, MLT Aikins Amy Gibson carries on a general labour and employment practice with MLT Aikins. 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, 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.

When hiring a new employee one of the last things on your mind is parting ways with them. However, one of the best methods for reducing an agency’s potential liability from terminating an employee is ensuring that you have well-drafted probation and termination provisions within your hiring letters or employment contracts.

contracts and hiring letters are up to date and reference the current legislation: The Saskatchewan Employment Act. The following are some helpful pointers for non-unionized agencies looking to improve their options for when employment relationships need to come to an end.

Further, to solidify the enforceability of these helpful provisions, it is important to ensure that your existing

HR/LR Insights

The following is an example of a probationary period provision: You shall be on probation for three months from your start date, during which time the Employer may, in its sole discretion, terminate your employment for any reason without notice or pay in lieu of notice.

Having a probationary period in place allows an employer to terminate an employee for “unsuitability”, which is an easier standard to meet than

Having a termination provision in place is also

art than science; the general factors that courts and

a useful tool for when the time comes to end an

employment lawyers look at include: length of service,

employment relationship. There are notice provisions

age and the status or hierarchy of the employee’s

in The Saskatchewan Employment Act that apply to all

position with the employer.

employees who are terminated “without cause”, but these are the statutory minimums. This notice can be provided as pay in lieu of notice, or working notice. The minimum amounts are set out in a table contained in s.

2-60:

Probationary Periods Probationary periods are an excellent way for testing out a new employee to see if they are a good fit for the agency and the position. Unfortunately there is no automatic probationary period provided for in The Saskatchewan Employment Act or otherwise at law. As a result, if an agency wishes to impose a probation period for their new employees, it will need to include a probationary provision within their employment agreements.

Termination Provisions

termination for just cause. A termination of a probationary employee is still open to challenge. The termination cannot, for example, be for discriminatory reasons. As a best practice, to terminate for “unsuitability” an employer should give the employee a meaningful and reasonable chance to prove their worth. A paper trail to prove unsuitability is very helpful if the termination is ever challenged.

Although the law provides that employees may be entitled to reasonable notice, the law also allows an employer and the employee to contractually agree to their own amount of notice (which can be less than what a court might determine is reasonable). However,

Employee’s Period of Employment

Minimum Period of Written Notice

more than 13 consecutive weeks but one year or less

one week

more than one year but three years or less

two weeks

more than three years but five years or less

four weeks

more than five years but 10 years or less

six weeks

more than 10 years

eight weeks

it cannot be less than the minimums provided for in The Saskatchewan Employment Act. The following is a termination provision that we recommend agencies use within their hiring letters or employment contracts: Your employment may be terminated at the sole discretion of the employer, upon being provided with the minimum notice requirements under The Saskatchewan Employment Act (the “Act”) or pay in lieu of notice. No other notice or severance provisions, whether written or oral, express or

Many employees can be entitled to more notice at

implied, shall apply. This clause shall continue to apply at

common law than the minimums in the legislation –

any time in the future regardless of what position you may

and in the context of long term employees – potentially

occupy at the time notice of termination is given. In the

significantly more.

event of just cause, no notice or pay in lieu is required, as

The common law states that employees who are

per the Act.

terminated without cause are entitled to “reasonable

Aside from minimizing the notice payable on termination,

notice.” Reasonable implies that the notice is going to

this type of termination provision provides employers

be different depending on individual circumstances.

with one additional benefit: certainty. You know what

Determining reasonable notice at common law is more

you owe when the time comes to end the employment.

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The Saskatchewan

Employment Act The Saskatchewan Employment Act came into force on April 29, 2014 and amalgamated a number of pieces of labour and employment legislation, including the former Labour Standards Act. If you haven’t reviewed your template hiring letters or employment contracts in a while, they may still reference the old legislation. Any contracts entered into after April 29, 2014 need to reference The Saskatchewan Employment Act to ensure

that the termination provisions are held to be enforceable. While it is not necessarily fatal if your employment agreements reference the Labour Standards Act by mistake, it is recommended that you review your template letters and contracts to make this one quick revision. It will assist in avoiding circumstances where troublesome former employees challenge the enforceability of the termination provisions.

MLT Aikins is offering the Saskatchewan Labour Update 2018 in Saskatoon on May 10, 2018 and in Regina on May 15, 2018.

SARC Members receive 50% off the regular rate. Register online and use promo code SARC50 to get the discount.

Click Here for Saskatoon Registration

Click Here for Regina Registration

Please Note: The included information is for reference only, and SARC and its Members, their employers, officers, and Directors assume and accept no liability for any consequences arising from the use, non-use, accuracy, or legal compliance of any of the information, tools, or resources provided.

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