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  • HR Heatbeat: Locked up and laid off, ramped up small claims, and….

HR Heatbeat: Locked up and laid off, ramped up small claims, and….

Dive into this week’s HR Heartbeat to learn why you may not have to pay statutory termination pay when an employee is incarcerated, the effects of increased small claims monetary limits in Saskatchewan, and so much more!

First published on Tuesday, Feb 20, 2024

Last updated on Tuesday, Feb 20, 2024

4 min read

Have you heard the latest news?

Welcome to HR Heartbeat where we give you a rundown of the week's top employment law stories. Stay on the pulse of current trends impacting your business. Plus, get up-to-the-minute commentary on all things HR and legal. So, let's check out this week's headlines...

Locked up and laid off

A recent Ontario Labour Relations Board ruling shed light on whether employees terminated after a criminal conviction are entitled to statutory termination pay.

As it turns out, there are no protections for criminal convictions under the Human Rights Code. In this case, the employee was sentenced to 18 months in jail.

Since their employer didn't want to leave their position open for that long, they fired the employee and cited frustration of employment and job abandonment as the reason for dismissal.

While the employee didn't initially disclose the duration of his conviction, as he hoped to appeal his case or get out earlier on parole, the employee's sister contacted the employer. She informed them of the full incarceration details.

After three months, the employee was released on bail, didn't contact the employer, and filed a claim with the Ontario Ministry of Labour claiming he was not paid statutory termination pay. However, after an employment standards officer investigated the case, the board found that:

  • The employer had no reason to pay the employee since his incarceration made it impossible for him to perform his duties

  • It was the employee's responsibility to file for a leave of absence while he sought an appeal, and since he failed to do so, the employer had no choice but to replace him

  • At the time of their termination the employer had indicated the employee wouldn't be able to perform their duties for at least six months at a critical time for the business

One key takeaway for employers is that you should have clear policies and procedures for absence management and watertight termination clauses in your employment contracts.

Small claims ramp up

Starting April 1, 2024, small claims monetary limits in Saskatchewan will increase from $30,000 to $50,000. This increase will likely impact all areas of employment law but mostly effects wrongful termination claims.

Employers in Saskatchewan can expect an uptick in wrongful dismissal claims as more employees pursue litigation after being fired.

There's more incentive for terminated employees because Small Claims Courts handle cases faster, have a simpler dispute resolution process, and workers can represent themselves.

The courts will also have to deal with employees willing to forfeit costlier claims at higher courts in favour of the ease of Small Claims Courts.

If you're an employer in Saskatchewan, keep in mind it can be hard to prove your terminated employee's failure to mitigate damages. This is because the Small Claims Court typically doesn't require disclosure of formal documentation.

Need help handling a wrongful dismissal claim? Discover BrightAdvice—our employment relations experts are available 24/7 to answer your questions and guide you through challenging situations.

The high costs of discrimination and harassment

The BC Human Rights Tribunal recently decided to order an erring employer to compensate an employee $100,000 for injury to their dignity.

This is a significant step in compensating complainants for workplace discrimination for injury to "dignity, feelings and self-respect."

The employee in question repeatedly faced sexual assault and harassment, their wages were withheld, and they were emotionally abused in addition to being abandoned in a foreign country.

On top of creating unsettling working conditions, the employer took advantage of the employee's substance abuse disorder (a protected disability) as a means of control.

To determine the appropriate award, the tribunal considers three main factors:

  • The nature of the discrimination
  • The complainant's social context or vulnerability
  • The effect on the complainant

The Tribunal found that the employer's conduct was discrimination based on sex and disability, a violation of s. 13 of the British Columbia Human Rights Code and ordered them to pay the employee $100,000 in compensation.

It's important to remember that harassment in the workplace isn't always between employers and employees or managers and their subordinates. Harassment and discrimination can also happen between coworkers. That's why it's important to enforce policies against discrimination in your workplace and adequately train staff or face costly consequences.

That's it for today! Come back next week for more HR news so you stay ahead of major employment law changes.

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