The document provides an overview of critical policy issues in human resource management, as presented by Chris Hylton at an Infonex conference. It discusses employment termination policies and best practices, implementing policies and ensuring compliance, balancing human rights and community bylaws, employee safety and workplace behavior issues, documentation requirements, and Aboriginal law considerations. Specific topics covered include just cause versus without cause dismissal, constructive dismissal, documentation for discipline cases, occupational health and safety programs, harassment and sexual harassment, and drug and alcohol testing policies.
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Critical policy issues in human resource management
1. Critical Policy Issues in Human
Resource Management
Infonex Winnipeg
10:30 am Sept 10, 2008
Chris Hylton, Principal
CG Hylton & Associates Inc.
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2. Agenda
Employment termination policies and best
practices
Implementing policies and ensuring that the
policies are respected
Balancing human rights issues and
Nation/Community by-laws
Employee safety issues and behaviour issues
in the workplace
Preparing proper documentation
Aboriginal law issues
NB: Chris is not a lawyer
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3. Employment termination policies and best practices
Reasonable notice (if no just cause) by both employer and
employee
Employer is required to give reasonable notice or pay
(severance) in lieu of notice
may dismiss for any reason unless it violates human rights
legislation
Reasonable notice standard set by –
Employment Standards Act
The employment contract
Common law (similar precedent cases), or
Collective agreement
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4. Just cause dismissal requires no notice
Dismissal without notice if –
Incompetence or failure to perform
(document, warnings, don’t approve
behaviour)
Misconduct – dishonesty, disrespect,
conflict of interest, sexual harassment etc
Not – personality conflict
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5. An employee discharged without adequate
notice can sue for wrongful dismissal
An employee can leave without notice when
required to work in dangerous conditions or
when work involves immoral or illegal
activities
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6. Constructive dismissal - employment
contract may be breached when nature of
job changes or working conditions become
intolerable.
Compensation based on reasonable notice,
lost benefits and pension rights
Employee must mitigate losses
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7. Termination
With cause and without cause
Organizational restructuring
Loss of funding
Terms and conditions of employment
contract
HR Policy
…all will impact ability to terminate
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8. Employment Standards each Prov/Territory
Statutes designed to protect employees
by setting minimum standards for:
safety
Wages, hours of work, overtime,
child labour
Termination
Penalties
Just cause
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9. Ee Notice to Employer
Less than 3 mos – nil
> 3 mos, < 2 yrs – one week
> 2 yrs – two weeks
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10. Employer Notice to Ee
> 3 mos 1 week or pay in lieu
Two years or more 2 weeks
Four years or more 4 weeks
Six years or more 5 weeks
Eight years or more 6 weeks
Ten years or more 8 weeks
More like 3 weeks / yr is common in courts
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12. Balancing Human Rights issues and
Nation/Community by-laws
Has anyone any human rights lawsuit stories
they would like to share?
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13. DO’S & DON’T’S
Human Rights
DONT’S DO’S
AGE
Birth Certificates If applicant has reached the
Age or Birth date majority of age
SEX
Female or Male on applications If applicant can meet the
attendance requirements
Pregnancy, childbirth, birth
control, etc
MARITAL STATUS If there are any circumstances
that applicant can not meet
If applicant is single, married,etc
attendance requirements
About spouse’s employment
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14. DO’S & DONT’ Human Rights
DONT’S DO’S
FAMILY STATUS
Number of children or If the applicant would
dependants be able to work the
Child care arrangements
hours required or if can
ETHNIC ORIGIN work overtime
Birthplace, nationality,
relatives
Whether born in Canada If applicant is legally
Immigration Status entitled to work in
Proof of Citizenship Canada.
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15. DO’S & DONT’S
DONT’S DO’S
LANGUAGE
Mother tongue If applicant
Where language skills obtained
understands, reads,
RACE OR COLOUR
writes and speaks
Anything that would indicate race or
colour, including colour of eyes, skin,
languages require
or hair for job
RELIGION Required work
Religious affiliation, church, shifts, whether the
membership, etc schedule would
affect the applicant
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16. Dont’s Do’s
Disabilities, limitations or If applicant has any
health problems condition that can affect the
Whether applicant uses ability to do the job
drinks or uses drugs If applicant has any
Whether applicant has AIDS, condition that should be
or is HIV positive
considered in selection
MEDICAL INFORMATION
If under physician’s care
Name of family doctor
If receiving counseling or
therapy
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17. DRUG AND ALCOHOL TESTING
Employers often want to test employees and prospective
employees for drug and alcohol use. Examples: pre-
employment testing, random testing on the job, or testing of
individuals whom they suspect of drug or alcohol use. It is
important for employers and employees to know that, under
human rights law, drug and alcohol testing are only allowed in
certain circumstances. BFOR, post event
Ab Commission’s position on testing
Drug and alcohol dependencies are forms of disability within
the meaning of the Human Rights, Citizenship and
Multiculturism Act.
Human rights laws prohibits discrimination based on disability. In
general, asking about or testing for a condition that is a
physical or mental disability is allowed only where the disability
would affect the employee’s ability to do their job.
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18. TEST – No Looking
Drug and alcohol testing are only allowable
in certain circumstances.
What are they?
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19. THE ENTROP CASE
The Entrop decision, from the Ontario Court of
Appeal, is the leading court decision on drug and
alcohol testing with respect to human rights in
workplace.
The Entrop case addressed drug and alcohol
testing policies that were created to deal with safety
and performance concerns on the job.
In the Entrop case, the court distinguished between
drug and alcohol testing because a positive
breathalyzer test for alcohol shows a current
impairment, and therefore is acceptable for safety
sensitive positions.
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20. ELIZABETH METIS SETTLEMENT CASE
In the case of Alberta Human Rights and
Citizenship Commission v. Elizabeth Metis
Settlement, The Court of Queen’s Bench
found that an employer’s drug and alcohol
testing policy was not discriminatory
In this case, the employer had implemented
a drug and alcohol testing policy in order to
deal with the alcohol and drug problem in
the community
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21. HARRASMENT IN THE WORKPLACE
What is Harassment?
Harassment occurs when someone is subjected to
unwelcome verbal or physical conduct. Harassment is a
form of discrimination, which is prohibited in most
jurisdictions under the Human Rights Acts under the
following grounds:
Race Religious beliefs
Color Gender
Physical or mental disability Age
Ancestry Place of Origin
Marital status Source of income
Family status Sexual orientation
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22. EXAMPLES OF HARRASMENT
Verbal or physical abuse, threats, derogatory remarks,
jokes, innuendo or taunts about appearance or beliefs.
The display of pornographic, racist or offensive images.
Practical jokes that result in awkwardness or
embarrassment. Unwelcome invitations or requests, either
indirect or explicit.
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23. Discrimination has occurred if:
Someone is refused a job, promotion or a training opportunity
because of resistance to harassment based on any of the
grounds listed above
Someone is refused a place to live or denied services normally
provided to members of the public based on an of the
grounds listed above
The harassment causes an unfavorable influence on decisions
affecting job performance; or
The harassment is insulting or intimidating.
Onus on the person experiencing the harassment to inform the
harasser that the behaviour is unwelcome.
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24. IN THE WORKPLACE
When a supervisor harasses an employee, it is an
abuse of authority and the employer may be held
responsible. It is inappropriate behavior that may
deny equal employment opportunity to the
employee who is harassed.
When a co-worker harasses another employee,
the employer may be held responsible.
Harassment is not new What is new is a growing
awareness of this serious problem in the
workplace. Harassment can prove costly to
employers through lost productivity, lost time
through stress-related illness, frequent staff
turnover and lowered staff morale. 24
25. SEXUAL HARASSMENT
This is a form of discrimination under the
Human Rights on the grounds of gender.
Sexual harassment is unwelcome sexual
conduct.
Behaviour which is acceptable to both
parties involved, such as flirtation, chit-chat
or good-natured jesting, would not be
considered sexual harassment.
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27. Occupational Health & Safety
The idea behind all OHS programs is to
make the workplace as hazard free as
possible
OHS policies set out rights and
responsibilities on the part of the employee &
employer
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28. OHS Program
Canada Labour Code
Canada Occupational Health & Safety
Regulations
Provincial regulations similar in all provinces
Nations covered by federal code, but
depending on set-up may also be required to
meet provincial requirements
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29. Typical OHS Program
1. OHS policy written and in place
2. OHS training for staff completed
3. OHS committee or worker representative in
place
4. Injury reporting system in place
5. Early and safe return-to-work program or
policy in place
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30. Components of OHS Program
not just written policy but all staff must be
fully trained and aware of program/policy
Documentation of regular meetings,
evaluations, reports must be kept
Does anyone know why safety meetings are
good?
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31. Penalties
In almost every province there are penalties
for non-compliance
Hazards can include: building safety,
electrical, fire, lighting, equipment, fumes
Drug & Alcoholism
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32. Preparing Proper Documentation
Good Policies
Good Personnel letters and files
Filing system
Why?
Who has a good system?
Who has no system or a bad system?
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34. Discipline
Before one may discipline, employee needs
to know what they were supposed to do
and/or not supposed to do
Job descriptions, OHS & HR policies
Need to have clear process and policy for
measuring performance (good and bad)
Performance Appraisal System
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35. Discipline
Disciple problems are result of poor
management, poor instructions, and/or
inconsistency in application of policies
Do employees really get up each morning
and say they want to do a bad job at work?
All policies and procedures should be
followed consistently and fairly
Discipline and rewards should occur in a
timely manner, why wait until annual review?
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36. Progressive Discipline
Three stages
1. Verbal warning
(memo in ee
file)
2. Written notice
(original letter
given to ee
copy in ee file)
3. Written final
notice (letter in
file) followed by 36
37. Discipline Policy
Manager should inform HR Manager of
discipline issue before first warning (if no HR
Manager – Chief, Band Manager, CEO)
If you have HR Manager, they should sit in
on verbal warning and second and third
warning to act as witness
Good to run past legal as well
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38. Discipline Policy
Some offences are cause for immediate
dismissal and should not go through
discipline process – ask lawyer
Conditions for “Dismissal with Cause” should
be clearly stated in HR Policy
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40. Please call if you have any HR, or
workplace issue that you are
overwhelmed with
We can help you
We also are pleased to do Free
Workshops for your organization (some
limits apply) Let us know what your
needs are and we will make it happen!
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41. HR Consulting Benefits,
Pensions,
Job Descriptions
EAP
Salary Grids
Strategic
Wellness at Work
Planning
Staff Morale Drug and Alcohol
Training and programs
Workshops Dept re-orgs
Tel 403 264 5288
Leadership
chris@hylton.cacompensation
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