Executive Labour and Employment Issues | Manager Employment Issues



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FAQ » Employers

I have employees who are frequently late or absent. What can I do?

As an employer, you have the right to expect that your employees will be at work on time and without authorized absences.

In order to ensure that your employees adhere to their obligations we suggest the following steps:

1. Determine the Extent of the Problem. Is the problem a single employee, several employees or an entire department? Determining the extent of the problem enables you to deal with the problem more effectively, and to eliminate the source of that problem. In addition to that, it protects you from the allegation that you’ve made an example out of a single employee.

2. Determine the History of the Problem. In order to figure out how to deal with the problem it is absolutely necessary to determine how long the problem has been going on. Depending on how long the tardiness and absences have been tolerated, different steps will need to be taken. If it is a relatively new problem, fairly direct action can be taken. However, if this problem has persisted for a long period of time, the law will likely consider that the employer has acquiesced to the employees’ behaviour. This does not mean that the employer has no options; it simply means that different steps will need to be taken in order to ensure the best possible solution.

3. Investigate the Problem. If an Employee or Employees are frequently late or absent, inquire as to why this is and offer them the opportunity to explain their behaviour.  This will help you to avoid taking unfounded disciplinary action or taking action against an Employee who is validly absent or late.  At the same time, it will strengthen your position and help you to avoid accusations that your decisions are unilateral or predetermined.

4. Issue Sanctions in a Progressive Manner. Sanctions are issued in order to ensure that your authority is respected. If your authority is respected then your Employees will honour their obligations to the company and your organizational objectives can be achieved.  However, you must issue sanctions progressively (starting with a warning and then escalating gradually to suspension and dismissal). If you issue sanctions only to later have them judicially reversed, your authority is undermined and your goals will not have been achieved. By issuing sanctions progressively, you ensure that your sanctions appear reasonable, justified and measured.

I have an Employee who is not a good performer and has been with me for a long time. I can’t afford to be in this kind of situation any longer. What do I do?

Courts and arbitrators are generally very protective of Employees who have been with a company for a significant period of time. A lot will depend on how long your Employee has been preforming poorly and on what the cause of the poor performance is.

If the cause of the poor performance is deliberate malfeasance or a deliberate lack of effort, then there are disciplinary options available to you. There is a world of difference in the eyes of the law between can’t and won’t. However, a Court will expect to see proof that someone is deliberately performing in a manner that is substandard or inconsistent with their best possible effort.

However, if the cause of the poor performance is that the Employee is unable to perform well even though they are doing their best, you will need to consider how long this problem has been tolerated. It is likely that you will need to offer forms of support before resorting to disciplinary action. The reason for this is that if the Employee has performed consistently poorly, then it will be difficult to justify why you have suddenly chosen to act and you will need to plan an alternate approach to the problem. On the other hand, if the Employee has suddenly begun performing poorly then you are better able to take disciplinary steps to remedy the problem quickly.

As you can see, depending on the problem, you may first need to offer the Employee support and coaching to improve their performance. However, if you address the problem of poor performance immediately rather than allowing it to fester, you are better able to justify a decision to take disciplinary action to fix the problem.

Business is not going well lately; what can I do vis-à-vis staff to save money?

When business is not going well we understand that you need save as much as possible on avoidable or unnecessary expenses, and that you need to do this by leaving your company with minimal exposure. In order to address this problem via staffing there are several options available to you: you can lay off employees either temporarily or permanently, and you can cut positions.

In order to minimize your company’s exposure you should consider the following factors as they relate to your employees:
1. Years of service to the company
2. Age
3. Prospects of finding a new job
4. Value to the company

Considering all of those factors will allow you to arrive at a solution which minimizes the company’s exposure and keeps your company in the best possible shape.

I find my business is being significantly hampered by parental absences and maternity claims. What, if anything, can I do?

In general, you can only do something about the employees who take more than they are entitled to and abuse their parental and maternity rights, not those employees who simply exercise their rights legitimately. The law and any collective agreements you have signed, give parents and pregnant women certain rights and you are required to respect these rights. However, you are not required to tolerate those employees who abuse their rights and take more than they are entitled to.

We recommend that you keep careful track of your employees’ absences and their reasons for those absences. If you discover that there are employees who are taking more absences than they are entitled to, then you have the right to find out why. Furthermore, if there is no legally valid reason for these absences, you then have the right to ensure that your employees respect their obligations and perform their work.  If your employees refuse to respect their obligations then you are entitled to apply progressive and escalating sanctions to ensure their compliance. These sanctions can start with a written warning and escalate to a suspension and dismissal.

While you have the obligation to respect your employee’s rights, you also have the right to ensure that employees respect your rights as well and that they perform their obligations to you. You have the right to dismiss those employees who persistently refuse to honour those obligations.  However, it is vitally important that you maintain documentable proof that can be used to justify and explain your decision.

Employees seem to have so many rights and I seem to have so few. What can I do?

While the situation may seem skewed towards one side, it is important to remember that Employees and Employers each have rights and obligations. Employees and unions each have two main sources of rights:

1. Sources of unionized Employees rights:
a. The Law
b. The Collective Agreement

2. Sources of non-unionized Employees rights:
a. The Law
b. The Employment Contracts

In order to avoid being taken advantage of later, it is important that an Employer put significant effort into negotiating an Employment contract or Collective Agreement. It is always better to address disagreements during the negotiation process of a Collective Agreement or Employment Contract, rather than to sign something unfavourable and attempt to deal with it afterwards. Signing something unfavourable can have a costly and negative impact which lasts for years and can really undermine an Employer with regards to any decisions they attempt to make.

With regards to the law, an Employer must respect an Employee’s legal rights.  However, plenty can be done to ensure that Employees do not take more than they are entitled to.  In general, Employers’ biggest problems are not the Employees who exercise their legal rights, it is the Employees who exceed their legal rights and do things which they are not legally entitled to do. An Employer has the right to ensure that Employees do not exceed their rights and that Employees respect their obligations to the Employer.  While it might at times seem like the situation is difficult or hopeless for the Employer, it is not.  Through good strategies and careful planning, excellent results can be achieved for the Employer and the Employer can ensure that all of their rights and all of the Employees’ obligations are respected.

I suspect someone of wrongdoing, but I have no proof. What should I do?

What you should do depends on the imminence of the potential danger. If someone is in imminent danger of being gravely injured, then immediate action may be warranted. However, in most cases the danger is not imminent and therefore it is important to obtain and organize your proof before making any decisions.

The best way to obtain proof is to investigate a problem. Investigation ensures that not only will you have useful and provable facts you can rely upon in making your decisions, but you will also not appear to have been rash or to have jumped to conclusions and that you took steps to avoid making any unfortunate mistakes. Investigations can sometimes reveal that those responsible for wrongdoing are greater, fewer or different than what you had originally thought.
Depending on who the victim is, there are different ways to investigate the problem. If the victims of the wrongdoing are employees being harassed by a manager or another employee of the company, chances are that the Employees will co-operate and help your investigation. If the victim of the wrongdoing is a customer or patient of yours, chances are they will co-operate with you and help your investigation.  If the victim of the wrongdoing is the company (ex: fraud regarding timecards, stealing, etc..), a different approach will have to be taken to the investigation. However, there are still several means of investigation that can ascertain what is going on and provide useful evidence to guide and justify your decisions. By properly investigating and obtaining the proper proof, you can discover exactly what the problem is and you help minimize the possibility of making a mistake or facing significant scrutiny for your decisions later on.

What is CSST?

CSST is a governmental organization with the social goal of ensuring that employees injured in workplace accidents and suffering from professional injuries receive full compensation. It is funded almost entirely by Employers. The CSST calculates the premium that every Employer has to pay and every Employer is required to pay their premium in full. For almost every Employer, the CSST bases its calculations upon 3 factors:
1. The size of the Employer’s payroll
2. The dangers associated with the Employer’s industry (ex. Office worker vs. steelworker)
3. The Employer’s performance

The Employer’s performance is the aspect of CSST costs which can vary the most for a given Employer and which can most significantly affect their CSST costs. An Employer’s performance is measured by the number of claims made against them and the size of those claims. Much like car insurance, the more claims made against the Employer and the more the cost of those claims, the more the Employer’s premiums will rise. However, unlike car insurance, the CSST is a governmental organization with a social goal and it expects all Employers to manage, contest and follow up on their own CSST claims. Failure to do so on a constant basis will result in an Employer significantly overpaying on their CSST premiums.

How does CSST affect a business?

CSST can have number of negative effects upon a business.  They can include:
1. Increased Premium Costs.  Illegitimate or exaggerated claims will drive up the cost of an Employer’s premiums dramatically.

2. Increased Labour Costs.  When an Employee is claiming CSST, they are not doing their job and an Employer must frequently pay an extra Employee to replace them.

3. Morale.  When an Employer adopts a lax approach to CSST claims, Employees begin to adopt a lax approach to performing at maximum effort constantly and attending work consistently.  There is a world of difference between being unable to work and not feeling one’s best.

4. Productivity Costs.  When Employees claim CSST or use a CSST claim as an excuse for why they cannot perform certain aspects of their job, productivity is no longer at its maximum.

5. Future Costs.  When an Employee is successful in making a CSST claim, they are able to use this as a reason why they cannot perform certain aspects of their job when they return.  This Employee can use a successful claim as a springboard for a future claim.

6. Other Employees.  If one Employee is successful in making a claim, other Employees may get the idea that they can successfully make claims.

The result is that CSST can easily cost a larger business hundreds of thousands of dollars in increased premium costs and even further lost productivity costs.  However, there are significant steps that a business can take to save significantly on CSST.

Why should I care if people are off my payroll and collecting money from the government?

You should care because your Employees aren’t collecting money from the government, they are collecting the money from you. Sure, CSST is run by the government and Employees are collecting from the CSST. However, unless you are a very very small Employer, the CSST bills all the costs of an Employee’s claim right back to you by significantly increasing your premiums. Based on the way CSST premiums are calculated, when your Employee makes a successful claim, your CSST premiums increase not only for one year, but will increase for four years. Moreover, if an employee has several consecutive months where they are absent, your file will be billed by the CSST at a higher multiple of the cost of their salary replacement because the CSST anticipates a long term injury. In some cases, this multiple is 3 or 4 times the actual cost of the Employee’s salary. Having employees on your payroll is preferable to having Employees on CSST, because Employees who are on CSST will cost you more than if they were on your payroll and you may have to pay to replace them. In order to save a significant amount of resources and money, it is important that Employers be aware of what CSST is costing them and that they take managing their CSST extremely seriously. While the CSST system may seem confusing and difficult to follow, the amount of money and resources at stake makes managing their CSST extremely worthwhile for an Employer. OLS’s knowledgeable professionals help Employers successfully navigate the CSST system so that Employers successfully reduce their CSST premiums and other related expenses.

How can I save money on CSST?

1. Contesting Illegitimate Claims.  Many claims made against Employers are illegitimate and if the Employer does not investigate, they are billed for these claims. Moreover, if one Employee makes a successful fraudulent claim, the Employee and other Employees will be encouraged to do so in the future.

2. Managing Claims.  Many claims which are legitimate are dramatically over-claimed.  An Employee might legitimately be entitled to claim three weeks for an injury, but if no one follows up or manages for the Employer, the Employee might successfully collect for several months.

3. Temporary Assignments.  Depending on the nature of the claim, an Employer may be able to assign an Employee to perform another position which would not aggravate their condition. If handled correctly, an Employer can reduce their premiums to the CSST and avoid paying for an Employee who is not working.  It also enables the Employer to provide a disincentive to Employees who claim CSST to get a ‘paid vacation.’

4. Cost-Sharing.  Frequently, an injury will be related to work performed for a different previous/simultaneous Employer, or related to a pre-existing condition.  If this is the case, an Employer is entitled to claim that the previous Employer or the CSST be required to absorb a significant part of the costs of the injury.

5. Verification of Unit Rate and Salary Mass. Double checking that the Company is being billed based upon the activities the Company is actually engaged in and that the payroll they are declaring is correct (including making sure that it takes advantage of all the potential exclusions).

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