Canadian HR Reporter

CANADIAN HR REPORTER FEBRUARY 2019 INSIGHT 23 Tim Mitchell TOUgHeST HR QUeSTiON The economic cost of over-protection While employees need protection, it's time for the pendulum to swing back a bit When a dismissal turns sour, employers can often gain unwanted media attention and blame, even if they have not committed any fault, per se. When it comes to employment relationships that have gone bad, most cases before tribunals are focused on employ- ees who were mistreated or neglected by employers that allegedly dismissed them unfairly. Of course, there are employ- ers that do abuse employees, and government inspectors and judges rightfully crack down on unacceptable behaviour if it's not settled out of court. Conversely, there are also em- ployees who treat their employers and their employers' representa- tives inadequately, who play the game and the system, knowing they may be rewarded for crying wolf. e court of public opinion tends to side with employees, without knowing all the rea- sons or justifi cations that led to the dismissal. e public often thinks the employer has the ben- efi t of unlimited resources to pay the employee off or to fi ght the employee to the end to justify its business decision. is lack of balance in percep- tion has tipped too far to employ- ers' disadvantage. Emboldened by legislation and jurisprudence, some employees have turned into habitual grievers or, worse, vexa- tious litigants. For disgruntled employees, there is no real downside to su- ing their employer, especially when they are represented free of charge. Imagine how many cases would never see the light of day if the "loser pays" rule were to apply. Anecdotal evidence suggests some employers prefer to leave positions open rather than risk the high cost of making the wrong hiring decision, which includes the potential cost of litigation, the cost and eff ort of recruitment and training, and the possibility they will eventually face the costs of another termination, with or without cause. Instead, these employers re- distribute work internally or pro- crastinate, relegating hiring to a permanent spot on a to-do list to be dealt with later. Falsely accused While employers large and small carry the economy by adding val- ue and creating jobs, they can feel consistently thwarted. Often, they take people at their word and do business on a handshake. is in- cludes hiring decisions: Business owners often make employment off ers without adequately protect- ing themselves and limiting their exposure. ey don't always have time for drafting, reviewing, ne- gotiating and executing employ- ment and restrictive covenant agreements. However, when things go wrong, they are faced with much longer notice periods and higher termination costs than necessary. And that is just the fi nancial side of the issue. As an example, an employer in Ontario with a stellar reputation found himself in hot water recent- ly, through no fault of his own. He had owned a 500-employee com- pany and then went on to start another smaller company. Everything was going well un- til one of the 15 employees gave two weeks' notice. Apparently, she only realized later that a res- ignation doesn't generally qualify someone for employment insur- ance (EI) benefi ts. e solution? e woman en- gaged the services of a lawyer who crafted a letter in which the business owner was accused of being physically threatening and verbally abusive to the employee as well as others. An eight-page statement of claim, with a full accounting of the alleged misdeeds, vices and transgressions, was added to the employee's fi le with Service Can- ada. e employee's stance was that she had been forced to resign because of the toxic and threaten- ing environment at the employer. Ergo, she was approved for EI benefi ts. Service Canada advised the employer of this decision but did not grant him the opportunity to review the claim made against him. While the former employee later admitted, verbally and in writing, to the court that she had made it all up to secure funding from Service Canada, the owner continued to be in Service Can- ada's books as a bad employer. e entire legal process cost him about $20,000 and many hours to defend his reputation. Strength in teams Many employees are looking for greater fl exibility in their work- place. And provincial legislators, attentive to the needs of employ- ees, have promoted greater work- life balance. When Ontario introduced 10 personal emergency leave days (with two paid days), as of Jan. 1, 2018, it was a challenge for many employers. One, for example, said that by February, 80 per cent of his 1,200 workers had already taken the two paid days off , wreaking havoc on his shifts and produc- tion schedule. While some larger employers may not feel any disadvantages from these initiatives as they have the means and resources to get around the problem, small and medium-sized enterprises are feeling the negative eff ects. Society defi nitely needs basic protection for employees, but the ever-increasing obligations that are being laid at employers' feet can come at a real cost to the economy. Employees need to share re- sponsibility with employers and demonstrate accountability to- wards them. Employees have the right to ask to be accommodated, but employers have the right to run a profi table business. If employers start questioning the rationale of setting up busi- ness in Canada, we would all be in big trouble. While employers should not be granted the right to fi re employees at will, it is time for the pendulum to swing back a bit. e strength of a team is each individual member: ey make the team grow and ensure its suc- cess, and everyone must work together to fi nd the right balance. Justine B. Laurier is a lawyer and partner specializing in labour and employment law at Borden Ladner Gervais in Montreal. She can be reached at jlaurier@blg.com. Evert Akkerman is an HR professional based out of Newmarket, Ont., and founder of XNL HR. He can be reached at info@xnlhr.com. Managers fi lling in for sick employees If supervisors help out on a regular basis, are they entitled to overtime pay? Question: If a manager fi lls in for sick em- ployees on a regular basis and performs their jobs while fi lling in, is the manager entitled to overtime pay? Answer: An employee's entitle- ment to overtime pay is governed by provincial employment stan- dards legislation, which gener- ally provides that a manager or supervisor is overtime-exempt, meaning they are not entitled to overtime pay, so long as the man- ager's primary duties are manage- rial in nature. Each province has a similar but distinct set of criteria to deter- mine if an employee's duties are managerial in nature (such as the ability to discipline or terminate staff ). ere is no set amount of time that an overtime-exempt indi- vidual must work her primary duties to retain overtime exempt status. In many managerial po- sitions, it is common for man- agers to complete some duties that are not normally considered "managerial." is often occurs when over- time-eligible employees are un- expectedly absent. Where occasional assistance on these types of tasks is required, a manager's overtime-exempt sta- tus would not change. However, there are cases where managers would become eligible for overtime pay. For example, in Glendale Golf and Country Club Ltd. v. Sanago, an executive chef who was hired into what was intended to be an entirely managerial and supervi- sory role was entitled to almost $10,000 of overtime pay for the weeks where his non-managerial and non-supervisory tasks took up more than 50 per cent of his working time. The Ontario Labour Board explained that the managerial exemption from overtime can apply even if the employee some- times performs non-managerial or non-supervisory work, as long as the "essential character" of the work remains managerial or supervisory. e fact that the executive chef performed line-cooking duties did not alter the character of his position. It was the frequency of performing line-cooking duties that made the chef eligible for overtime. As a general proposition, a company's manager may per- form non-managerial tasks and still be exempt from overtime, provided that such tasks are only performed on an irregular or ex- ceptional basis. If a manager is fi lling in on a "regular basis" which results in her principal or primary duties shifting from managerial duties to employee duties, then the man- ager may be eligible for overtime. Employers should actively monitor the tasks managers and supervisors perform while at work. For weeks when a manager's managerial activities account for less than half of the hours spent at work, he should likely be paid overtime. In addition, employers should be cautious and ensure that non- managerial and non-supervisory tasks are only performed by managers on an irregular basis to avoid becoming liable for over- time pay. For more information, see: •Glendale Golf and Country Club Ltd. v. Sanago, 2009 CarswellOnt 12591 (Ont. Lab. Rel. Bd.). Tim Mitchell practises management- side labour and employment law at McLennan Ross in Calgary. He can be reached at (403) 303-1791 or tmitchell@mross.com. For more infor- mation, visit www.mross.com. Employers should ensure any non- managerial tasks are only performed by managers on an irregular basis. Employees need to share responsibility with employers and show accountability. Employers have the right to run a profi table business. When a dismissal turns sour, employers can often gain unwanted media attention and blame, even if they have not committed any fault, per se. When it comes to employment relationships that have gone bad, most cases before tribunals are focused on employ- ees who were mistreated or neglected by employers that allegedly dismissed them Justine Laurier and Evert Akkerman GUeST COMMeNTaRY

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