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  • HR Heartbeat: Pay transparency guidelines, recording workplace conversations and...

HR Heartbeat: Pay transparency guidelines, recording workplace conversations and...

This week, we dive into the case for longer common law notice periods, why an employee was terminated for recording workplace conversations and lots more.

First published on Tuesday, Nov 14, 2023

Last updated on Tuesday, Nov 14, 2023

6 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...

Common law notice surges

Two recent cases from the Ontario Court of Appeals have raised what has long been the unofficial cap for common law notice periods.

In the past, 24 months' notice was the highest notice required by common law. But more recently, the Courts awarded two employees a 30-month and 27-month notice, respectively.

These increased notice periods might make employers across the province shift in their seats because the norm (so far) has been to offer terminated employees severance pay instead of notice. With such long notice, you may be looking at a considerable payout to terminate an employee.

Hold off on calling your accountant for now, as both cases had exceptional circumstances. Both employees had worked with their employers for 38 and 40 years, respectively. So, the Court ruled that they had developed specialized skillsets that would not be easily transferable to other employers or industries.

While you may not have any employees who've worked for your business for that long, it raises some uncertainty about common law reasonable notice, and successful settlement of termination disputes.

That's why it's important to have expertly drafted employment contracts with enforceable termination clauses so you don't wind up with a hefty severance bill!

Sweeping open the pay curtains

Over in British Columbia, employers in provincially regulated industries with over 1,000 employees have until November 1st, 2024 to publish their first Pay Transparency Report.

The province has also published a Pay Transparency Regulation to give employers detailed information on how to prepare their pay transparency reports.

Some of the information employers must collect includes gender information, and information reflecting the pay gap between a reference category, and each gender category of their employees.

Ontario also introduced pay transparency laws to help encourage equal pay, close the gender pay gap, and address barriers that women face in compensation.

Employers in every province should gear up for similar events because as the top-performing provinces adopt pay transparency laws, we can only expect other provinces to follow suit.

Need help putting together comprehensive payroll reports? Our payroll navigator helps you securely store your important employee's payroll information for easy access whenever you need it.

Broken trust and recorded revelations

It appears the conditions for terminating an employee are subject to change even AFTER the termination.

In a recent case, an employer had terminated an employee without cause. The employee then took the case to court, and during proceedings, revealed he'd secretly been recording workplace conversations for years.

He claimed he only started recording conversations for training, as English wasn't his first language. But the employee kept recording conversations even after becoming familiar with his tasks, claiming that he kept recording conversations because he didn't get along with his supervisor and needed evidence if he ever decided to file a complaint.

After his supervisor was fired, the employee continued recording all his meetings with HR and managers. When the employer found out the employee had recorded over 100 workplace conversations, the employer amended their response to the employee's wrongful dismissal suit.

His termination was changed to a 'with cause' termination as his actions demonstrated a character of untrustworthiness and went against the employer's code of conduct and ethics. The court ruled that the employee's activity was misconduct, damaging any trust in the employment relationship. His recordings had nothing to do with his inability to speak English and more to do with his displeasure about other things happening in the workplace.

Need advice handling similar complex situations? Get some BrightAdvice; our employment relations advisors are available round-the-clock to help you figure out whatever unique challenges your business may face.

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

Have more questions on similar topics and more? BrightLightning has thousands of answers to all your HR and health & safety dilemmas.

Can employees secretly record their employer?

Recording an employer in a meeting without their knowledge is not illegal in Canada. Canada’s Criminal Code only requires one-party consent when recording, meaning that so long as one party (i.e. the employee) consents to and has knowledge of the recording, it is legal. However, employees who secretly record meetings or interactions with their employer, coworkers, or clients could be in breach of their confidentiality obligations to the company, which may justify a termination with cause. A termination for cause may be justified if the recording results in a breach of trust with the employer and causes irreparable harm to the employment relationship. Employers should have a policy establishing the company’s stance on recording in the workplace and the penalties for non-compliance.

What is the notice period for a terminated employee at common law?

Bardal v. Globe & Mail Ltd. is the leading case in Canadian employment law used to determine how common law notice periods are calculated. This case sets out the following factors for determining a reasonable notice period: age, length of employment, similarity of available jobs, and characteristics of employment. Common law notice is generally one month’s notice per completed year of employment; however, employers should conduct an individualized analysis of the factors that will impact the terminated employee’s ability to find new work.

Do all employers have reporting obligations under British Columbia’s Pay Transparency Act?

Starting November 1, 2023, Government agencies (e.g., British Columbia’s Government, BC Hydro, BC Housing, BC Transit) must complete and publish annual transparency reports that contain certain information about their employees. This requirement will be phased within a four-year period. Thus, by November 1, 2024, employers with 1,000 employees or more will have this requirement. Reporting obligations will become operative for employers with 300 or more by November 1, 2025. Finally, for employers with 50 or more employees, their reporting obligations will start on November 1, 2026. The specific content of the transparency reports will be established through regulations.

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