Employment contract definition
framework / foundation of employer/employee relationship
what are the sources of Express CT Terms?
- expressly agreed to in EC - written terms, in ER policy manual or employee handbook
- Implied by common law: duty to be loyal / promote interests of employe / not compete with employer
What is the difference between minor terms and major terms?
Process of modifying CT terms
& where found?
Minor: slight rule changes, notify employees to make them aware of a change - alter coffee break times/procedures
Major: fundamental changes require additional steps & significant advanced notice, working hours / transfers / wages
EE handbook / ER policy man
contents of Policy man and/or EE handbook (8)
- probationary periods
- rules regardng dress codes
- company rules/policies & consequences if breach
- benefit entitlements / sick or other forms of leave
- expense accounts
- disciplinary procedures
- harassment policy & procedures
- termination notices
contents of Policy man and/or EE handbook (8)
- probationary periods
- rules regarding dress codes
- company rules/policies & consequences if breach
- benefit entitlements / sick or other forms of leave
- expense accounts
- disciplinary procedures
- harassment policy & procedures
- termination notices
Maximize benefits of policy man (10)
- incorporate manual reference into EC
- provide copy of manual to employee prior to signing EC
- Have employee sign an acknowledgement of Manual
- Ensure manual language is clearly drafted
- apply policies consistently among employees
- ensure employees have an up to date copy
- give as much notice of significant change as possible
- ensure employees understand breach of policy & consequences
- create a clause giving employer sole discretion to change policy when reasonable (operational reasons / improve efficiency / legislation)
- must be able to update manual periodically to reflect all changes / changing needs
How to change EC for minor and for major
- minor change
a. announce
b. distribute amendment (claim reimbursement, office changes, security, free snacks) - Major change
a. provide notice of change equivalent to common law notice periods
b. provide consideration - quid pro quo, longer lunch 1x/w
c. explain consequences of rejecting the offer (termination with notice)
constructive dismissal & changing terms
- may be constr diss if without “process”
- may not change CT w/o offering quid pro quo
def const diss if : ER unilaterally makes sub changes to essential elements of EC to detriment of EE (intolerable workplace - change shifts, reduction of pay, change in benefits)
how can EE respond to changes in contract (4)
- accept / make counter offer
- inform ER- change is constructive diss
- quit & sue ER for pay in lieu of proper notice
- stay & sue ER for monetary diff between old & new term
what to do to change EC w/o constr diss (6)
- discuss w/ EE re change of EC
- provide advance notice of fundamental change
- explain consequences of rejecting change (refuse to accept new term? under terms of original EC employment is terminated at end of reasonable notice period)
- offer to employ (rehire) EE at end of “previous” EC under terms of new EC
- make clear to employee “change” will take place regardless of acceptance
- provide reasonable notice of termination
Promotion - force & failed
Monitoring EC (3)
Promotion - EE should not be forced to accept promotion
- if failed at new job & no just cause
1. return EE to previous job
2. provide reasonable notice/pay in lieu
Monitor-
- use reminders to inform time-sensitive clauses (probation & fixed terms)
- insert clause “CT may be updated periodically”
- NOT allow EE to continue working beyond expiry date
Performance Appraisals def & to dos (7)
Progress report, not discipline
- honest, balanced & respectful
- communicate job standards clearly
- give EE chance to respond
- document the appraisal & give EE a copy
- set future goals
- keep paper trail
- conduct appraisal separate from salary increase
Condonation definition
&
when to use Progressive Discipline
Definition: ER fails to respond to misconduct within reasonable time period - aware of misconduct but failed to take action & cannot later use misconduct to pursue discipline
Progressive D. = less serious infractions of rules
Suspension without pay:
- when constructive dis?
- what to do?
- must be express/implied term of EC otherwise constructive dis
- must:
a. include unpaid suspension in clear, well communicated & consistently enforced progressive dis process
b. be reasonable -> unreasonable suspension is constructive dism
c. consider alternative option (verbal, written, final written, termination)
Corrective probation def,
- connection to constructive dism &
- alternative
def: put employee on notice that performance is being observed
… if absent in EC, could be fundamental change of EC and therefor constructive dis
- don’t use corrective probation
- use progressive disc.
- provide reasonable opp for EE to improve
Temporary Layoffs
- connection to constructive dism
- when termination
- better option
- constructive dismissal if non-union workplace w/o reasonable notice –> fundamental change of EC
- termination unless
a. layoff procedure in EE’s EC
b. layoff is a standard practice in industry (construction, retail, manufacturing, energy/oil)
- even if allowed, cannot exceed 13 weeks in a 20 week period - a. ensure contract allows for layoffs
b. provide reasonable notice
Absenteeism
- Types (2)
- Attendance Management Programs require (6)
- Culpable & innocent
- require:
a. contact to call if late or absent
b. giving as much notice as possible
c. give anticipated date of return
d. explain when a dr note is required
e. explaining form dr note should use
f. provide procedure for returning EEs
Medical Info ER may ask EE: absence due to illness
Functional abilities (info necessary for ER regarding operations management)
- EE fit to return to work
- must respond to request for accommodation
- nature of illness
- disability (not diagnosis)
- prognosis
- date fit to return to work / restrictions
Vicarious Liability definition
legally responsible for harm caused by wrongful/negligent conduct of EEs during course & scope of employment when
a. authorized by ER
b. unauthorized but connected with authorized act
ER’s duty to take reasonable care:
- safety of EEs
- others who come into contact with EEs
ER liability: Alcohol consumption (2)
&
Guidelines (5)
& cell phone
liable:
- serves alcohol at work-related event
- aware EE driving company vehicle while intox
Guidelines
- limit intake by providing small number of tickets
- hire prof. servers & tell them to refuse to serve intox ppl
- serve food, not only alcohol
- provide FREE transportation from parties & insist guests use it
- provide designated drivers & keep contact info for family members & appt ppl to monitor alcohol consumption
ER liable if EE uses cell phone for business purposes while driving
