Connect with HR – Ask Jacq

Posted on January 8, 2013 by djb | Posted in Highlights

As we have had so many requests for information on a variety of HR topics over the past few months, we have dedicated this issue entirely to ASK JACQ questions and responses. If we haven’t responded to yours, then please don’t hesitate to call me directly.

Dear Jacq,

Q: I received a notice from the Labour Board that a complaint has been filed against us for non-payment of overtime wages. We have a policy in our Company that we only give time off in lieu of overtime worked. This is clearly stated in our policy manual. The employee who filed the complaint never worked any overtime, and was a trouble maker. We fired him a month ago. The Labour Board said they were coming to review our payroll. Do we have to allow this?

A: First and foremost, yes the Labour Board has full authority to ask to review your payroll and other personnel records, take away files they want to copy, and do a thorough review of your payroll practices. Secondly, you cannot develop a policy that contravenes the Employment Standards Act legislation. Therefore, you can only offer an employee the choice between payment for overtime or time off in lieu of overtime. If the employee agrees to time off in lieu of overtime, this must be in writing. Any employee can file a complaint, whether they are currently working for you or have left your employment and whether or not they were impacted by the lack of compliance or were witness to the lack of compliance.

The Employment Standards Officer can issue a compliance order which cannot exceed more than $10,000.00 per employee covered by the order. They can also investigate other practices in your organization and if you are found to be non-compliant, they can issue further orders, tickets or fines.

Dear Jacq,

Q: We have an employee whose Police Record Check indicates he was charged with a criminal offense. Can we fire him for cause?

A: As long as you have a policy and an employment contract which clearly states that any unclean Police Check will lead or could lead to termination, you have the right to fire the employee with cause.

Dear Jacq,

Q: We are about to undertake three lay-offs. We know we won’t be recalling one of the employees as he’s a problem. Do we just provide him with an ROE stating a layoff and then never call him back?

A: Yes you can do that but at the end of the 13 week lay-off notice, if you are not recalling him back to work, you will still have to provide him with termination pay as stipulated in the Employment Standards Act and re-issue a revised ROE.

Dear Jacq,

Q: We are thinking about providing our employees with a Profit Sharing Plan but we don’t really know how to develop a plan and would like to know what types of things we should consider when developing this plan.

A: Profit Sharing Plans come in all sizes and shapes. But most should consider at least
the following:

  • Who is eligible and when? Profit sharing may be different
    for different levels of employees and different types of employees. Clerical
    vs. management; those who have a direct impact on revenue and those who don’t,
    those who have control of expenses and those who don’t.
  • Sales profit sharing would normally be profit, minus
    overhead, minus A/R, and bad debt.
  • What amount can you afford from your net profit for the
    employee profit sharing plan?
  • What percentage of the profit sharing pool will employees
    be eligible for, 5%, 10%, 15% (or more)?
  • Will profit sharing be based on position only or length
    of service or a combination of both?
  • How often will you pay out the profit sharing pool?
    Quarterly, semi-annually or annually?

There are many different variables but remember, before you implement your plan, speak with your accountant and with your HR Professional!

Dear Jacq

Q: Is there anything that can prevent me from implementing a Fragrance – Free policy whereby we do not allow any employee to wear perfume, after-shave, cologne, scented hairspray, etc.? We have two employees who seem to bathe in strong perfume/after-shave and it bothers others in the office. We have tried speaking to them about the issue, but they tell us it’s their “right” to wear whatever scent and how much scent they want. Is this true?

A: No it is not a right and under the Human Rights Code there is nothing precluding an employer from implementing a Fragrance – Free policy. Ensure that you communicate the policy, explaining why you are implementing it, i.e., allergies, breathing issues, etc. in writing and then be prepared to enforce it.

Dear Jacq

Q: We have an issue between two long-term employees in our office, which has now resulted in one of them filing a harassment claim through the Labour Board. The Labour Board came in and investigated and did not find any evidence of workplace harassment, however, we have been told that we have to post the results of the investigation for a period of six months where all the employees can access it. We think this is very unfair as we worked hard to keep this confidential. Do we have to comply?

A: Yes I am afraid you do. However, perhaps in future this could be avoided. Do you have an internal process for employees to submit harassment complaints? A robust policy regarding Workplace Harassment/Workplace Violence is great, but unless you also have a detailed process explaining how to submit an internal complaint and how the complaint will be dealt with, then employees will feel that their only recourse is via the Labour Board.

Dear Jacq,

Q: One of our senior managers is having an affair with our receptionist who is new to our organization. They think they are hiding it but everyone knows about it and it is causing a great deal of disruption in the office. Both of them are married and we recently had an office event where the spouses were invited. It was very embarrassing, I believe, and very uncomfortable for all our staff who know what’s going on and had to watch these two with their spouses. Can we suggest to the receptionist that she look for another job or we will terminate her? Should we speak with the senior manager as well.

A: Tread carefully, very carefully! What actual proof do you have that they are having an affair? Is the relationship having a negative effect on their work? When you say it is causing a “great deal of disruption”, do you mean there is a lot of gossip and time wasted discussing the relationship? Those who are not doing their work due to excessive gossip should be approached individually. But asking the receptionist to look for another job is actually “termination”. Why isn’t the senior manager being asked to look for another job? I can assume it is because he has been there longer and his position is considered to be more valuable, it would be difficult to replace him and his leaving might impact the bottom line, but asking the receptionist to leave or terminating her employment is grounds for a “wrongful dismissal” claim on many different grounds. These grounds speak to
discrimination based on gender being one, and “sexist” being another. My advice would be to approach the senior manager, tell him your concerns about the “gossip” and ask him to perhaps make his “friendship” with the receptionist less obvious, without implying anything about the “affair”. I strongly urge you to discuss this with me further, if you feel comfortable doing so. This is what I refer to as a “land-mine” situation!

Email us with your questions, concerns andideas and we’ll respond in the next issue. Start now!