Financial Planning For Canadian Business Owners

In today’s episode, Jason Pereira talks to Ellen Swan. She is a Barrister and Solicitor at Caravel Law. Ellen has a specialization in HR Law, and Jason brought her on the show to talk about best practices when bringing on, maintaining, and firing your staff and even addressing what to do during Covid with some of these more interesting cases for dealing with.

Episode Highlights:

• 1.01: Ellen supports employers with HR issues in the workplace that range from onboarding, management of the relationship, including disability issues, leaves of absence, performance management, compensation issues. She also helps when things go wrong, and the relationship ends for various kinds of reasons.  
• 1.46: Ellen answers when someone is looking to hire someone. What are the best practices from HR law standpoint when it comes to onboarding them? 
• 1.53: When hiring an employee, the most important thing is to have a well-drafted employment agreement that the employee sees and signs before starting work. That can be a template that you get reviewed periodically by your lawyer. Still, it should be something that is initially drafted by a lawyer who practices in employment law, not just your general commercial lawyer.
• 2.48: Ellen says more than 50% of her practice is dealing with terminations where the employment agreement is non-existent, poorly drafted, out of date. The law has evolved, and the employee has not signed a new agreement with every promotion or every change in salary that is considered for the agreement, and those things are constantly evolving. 
• 3.15: The big issue with an employment agreement is that it doesn’t have to be in writing under the law, so you will have an employment contract with someone you employ, even if you never present them with an agreement in writing. 
• 4.08: People are typically surprised by termination clauses, so how specifically they have to be drafted to be compliant with the law with respect to minimum entitlements, not contracting out of the minimum entitlements, as well as what the law fills in when the clause is not drafted effectively.
• 4.32: The bulk of litigation that relates to employment contracts comes up for essentially, one reason there is someone who has been let go who has not been worth making an investment in to manage performance. 
• 7.46 Ellen says lawyers draft agreements to bring people together, keeping in mind that at the end is when everything becomes important that we’ve written down.
• 8.14: In hiring, you are making sure those terms and conditions and the clauses, and then the general schedule contract is done by somebody knows what they’re doing, but specifically the biggest area looking after what happens when this relationship ends, so it is your work employment prenup for lack of better term on, says Jason.
• 8.51: You want to know, just like any consumer, you’re a consumer of services, and so you want to know as an employer what you are getting for your money. But you can be accused of using information for inappropriate purposes if you get too much information, says Ellen.
• 9.10: Ellen affirms, information with respect to medical issues, disabilities, alcoholism, which is the disability, marital status, family status all those kinds of things that is why you get that sense out there in the marketplace that there are certain questions you can’t ask in an interview. 
• 10.06: At the end of the day, humans have a right to our own privacy in medical situations, and we have a right not to be discriminated against for it, says Jason.
• 12.16: There is absolutely no point in creating a sense of security that should not exist. Ellen avoids using words like, not a good fit because not a good fit creates a sense of otherness in people who already have a sense of otherness.
• 13.30: Ellen suggests, if you have a well drafted employment agreement probationary period matters less from an actual liability perspective because you will have limited their persons entitlements on termination in such a way that you are comfortable exit in them at any time.  
• 15.26 Ellen explains there are two lenses applied to consider whether someone is an employee or contractor, one under employment legislation and one with the CRA.
• 15.50 Ellen says, if you think of a pure contractor relationship, you engage a third party to build an app for you, and if that third party it can be an individual, or it can be like an app producing mega-company that has 100 developers working for it. 
• 18.35: You always have the possibility of an audit from the Ministry of Labor under a Conservative Government in the middle of a pandemic that is not really what they are focusing on right now in terms of where they are spending their enforcement dollars, but back when the Liberals were in power and before the pandemic hit, it was very big economy focus and that legislation and those kinds of enforcement measures were around.
• 21.23: People get scared when there is a huge surprise, and that is when you end up with the union organizing drives or workplace sort of uprisings that you may not want or just people that aren’t really happy, and you have a talent retention problem, says Jason.
• 22.50: If you are not going to go down the performance management route, then don’t say performance reasons at the time of termination because you are just going to make somebody mad that they didn’t get a chance to meet your expectations. 
• 28.03: If you purported to temporarily lay someone off in accordance with the temporary layoff provisions of the Employment Standards Act and you did not have the Employment Employees agreement to do so, whether in an employment agreement or at the time of layoff, then that was constructed dismissal outlaw, and that meant that you had effectively terminated the person even though you’re ported to keep them on layoff, and they were entitled to wrongful dismissal damages. 
• 28.28: During COVID, the government changed the rules with respect to temporary layoff and said essentially, if you can’t work because of COVID, whether it is because of your own exposure, needing to quarantine, or because of a loss of business, then it became infectious disease leave.
• 34.52: Ellen answers what vaccine mandate means? Does that mean you are saying you will lose your job if you don’t get vaccinated because it is probably not just cause, which means you are paying out this termination package? 

 3 Key Points:

1. Jason brought Ellen on this show specifically to tackle best practices and policies from an HR standpoint. They both will look at it through the lifecycle of an employee. 
2. Ellen talks about the “Probationary Period” what that is and what that cannot be? 
3. One thing that has come up quite often in Jason’s practice with some people is basically dealing with employees versus contractors. When can someone or a candidate consider a contractor? and when is there an employee-employer relationship there that the employer needs to recognize contractually otherwise, they could be in trouble?

Tweetable Quotes:

• “The law of employment agreements is one of the most heavily litigated areas of contract law.” – Ellen
• “The law typically protects the ones that considered weaker of the two in any endeavor.” – Jason
• “You can make your probationary period as long as you want. The only caveat is that you cannot let someone go without notice or pay in lieu of notice if the probationary period extends.” - Ellen

Resources Mentioned

• Facebook – Jason Pereira’s Facebook
• LinkedIn – Jason Pereira’s LinkedIn
• Woodgate.com – Sponsor
• LinkedIn – Jason Pereira’s LinkedIn
• Ellen Swan: Website
• Podcast Editing

Transcript