Author Archive

Reducing Legal Expense in Wrongful Dismissal Actions

By Alfred Kempf
Categories: Blog, Employment Law
This short article will summarize some strategies for employers and employees in making wrongful dismissal actions less expensive.

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Reinstatement Under the Canada Labour Code

By Alfred Kempf
Categories: Blog, Litigation
In a new decision in Wilson v. Atomic Energy of Canada Limited, the Supreme Court of Canada has affirmed that non union, non management, employees of federal undertakings may under the complaint process under the Canada Labour Code be reinstated.

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Swinging the Heavy Hammer: Just Cause Terminations

By Alfred Kempf
Categories: Employment Law, Firm News
Pushor Mitchell is pleased to announce Swinging the Heavy Hammer: Just Cause Terminations, the next presentation in our LawTalks: Business Law Today series.

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Having Your Severance and Eating It Too

By Alfred Kempf
Categories: Blog, Employment Law
Employees who are passed from one employer to another in the event of the sale of a business create interesting issues for employment lawyers.

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Can An Employee Be Unfired?

By Alfred Kempf
Categories: Blog, Employment Law
In a recent British Columbia case our courts considered whether an employer would be excused from paying severance pay to a terminated employee by offering to rehire her.

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The Duty to Mitigate

By Alfred Kempf
Categories: Blog, Employment Law
Employment lawyers should tell their wrongfully dismissed ex-employee clients about the duty to mitigate.

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Organizational Health and Wellness Summit 2015

By Alfred Kempf
Categories: Firm News
Pushor Mitchell LLP is proud partner with Diversified Rehabilitation Group in presenting the Organizational Health and Wellness Summit October 22-23, 2015.

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Termination of Federally Regulated Employees Without Cause

By Alfred Kempf
Categories: Blog, Employment Law
Most non-unionized employees can be dismissed without cause with appropriate notice or pay in lieu.

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BC Court of Appeal Teacher Case

By Alfred Kempf
Categories: Blog, Litigation
See the complete written Court of Appeal case reasons here.

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Employers’ Presentation Series: Understanding Workers’ Compensation and Occupational Health and Safety

By Alfred Kempf
Categories: Employment Law, Firm News
Pushor Mitchell is pleased to present “Understanding Workers' Compensation and Occupational Health and Safety.”

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Employment Law Q and A

By Alfred Kempf
Categories: Blog, Employment Law
I fired an employee and paid the Labour Standards severance pay of 4 weeks. Now the employee is suing me for more? Is that right?

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Employers’ Presentation Series: Drug and Alcohol Addictions in the Workplace

By Alfred Kempf
Categories: Firm News
Following our successful Fall 2014 series Navigating the Seas of Change, Pushor Mitchell LLP is pleased to announce the continuation of its monthly presentations for Okanagan employers.

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Think Twice Before You Sue

By Alfred Kempf
Categories: Blog, Employment Law
Jian Ghomeshi is just one example of an employee who regrets taking action against his employer. A recent case in BC involved a project manager who was terminated without just cause. He sued his employer wanting more severance pay

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Employers’ Presentation Series: The Good, the Bad and the Ugly: 5 Employment Law Lessons from 2014

By Alfred Kempf
Categories: Firm News
Pushor Mitchell is pleased to present “The Good, the Bad and the Ugly:  5 Employment Law Lessons from 2014”, the final installment in our fall employment law series, Navigating the Seas of Change. Employment law is constantly evolving.  To help navigate this changing environment, Pushor Mitchell is pleased to host a “year in review” to […]

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Key Changes to Temporary Foreign Works (TFW) Program

By Alfred Kempf
Categories: Blog, Employment Law
Program name change from Labour Market Opinion (“LMO”) to Labour Market Impact Assessment (“LMIA”); Caps on percentages of foreign workers starting at 30% and reducing to 10% in 2016; Prohibition of TFW in low wage and skill groups in areas in certain sectors (food services, accommodation and retail trade) where there is high unemployment (6% […]

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Caregiver’s Rights to Flexibility Succeed Second Challenge

By Alfred Kempf
Categories: Blog, Employment Law
On February 17th, last year I wrote about a case (Johnstone v. Canada (A.G.)) in which a mother was awarded substantial damages because her employer did not accommodate her requests for flexible hours she said she required to care for her children.  My article can be found at:  www.pushormitchell.com/law-library/article/new-developments-employee-leave-family-obligations

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Employee Notice Period Enforced

By Alfred Kempf
Categories: Blog, Employment Law
In a recent case involving Blackberry and one of its executive employees a court made a declaration that a relatively long notice period by an employee (six months) is valid and enforceable. Most often employment agreements only require notice periods in the range of two weeks to a month. In the case the employee had, in an employment contract, agreed to provide six months’ notice of his resignation.

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Default Under A Commercial Lease – Part One

By Alfred Kempf
Categories: Blog, Real Estate
A landlord's reaction to a default under a commercial lease is usually determinative as to its ability to collect arrears and to recover future rent under the lease. This first installment of this five-part series will set out some of the important questions that landlords will be asked in assessing an appropriate course of action. The questions are as follows: 1. What is the default alleged? 2. Is there a written lease? 3. Have you [...]

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Employee Internet Use

By Alfred Kempf
Categories: Blog, Employment Law
The internet is a valuable tool in most workplaces. It is a vast, quick and free source of information. While the information gleaned from a search is likely not to yield a definitive answer, it almost always provides a direction to the answer.

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Where There’s No Smoke … Electronic Cigarettes at Work

By Alfred Kempf
Categories: Blog, Employment Law
At this time there are no municipal bylaws or workers’ compensation regulations preventing the use of electronic cigarettes in the workplace. Does this mean that employers need to allow their employees to use these devices?

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Suing For Everything But The Kitchen Sink

By Alfred Kempf
Categories: Blog, Employment Law
Emotions can run high in any civil dispute. The parties in their anger will speak poorly of the other, they may treat each other with disdain or disrespect in the process. Feelings will inevitably be hurt and often psychological injury -- temporary or permanent - may result.

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Social Media And Trade Secrets

By Alfred Kempf
Categories: Blog, Employment Law
Employers encourage key employees, particularly sales employees, to use a wide variety of social media sites including Twitter, Facebook, and LinkedIn to connect with customers and prospective customers.Professional firms encourage their members to publish articles on blogs (and websites like this) to promote knowledge and skill to their customers and prospective customers. All is well until there is a break in the relationship.

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Tough Economic Times – What Can An Employer Do?

By Alfred Kempf
Categories: Blog, Employment Law
With the decline in general economic activity and increasing competition from low wage countries, what can employers do to lower their labour costs?A human resources professional could help with issues concerning motivation and productivity.  An engineer or technician could help with respect to technology and modernization of processes and procedures.  This article will discuss the legal issues surrounding reduction of workforces [...]

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The Constructive Dismissal Conundrum

By Alfred Kempf
Categories: Blog, Employment Law
One of the issues plaguing lawyers in giving advice to employees whose terms and conditions of employment have been altered is whether the employee should withdraw services and claim constructive dismissal or keep working while looking for new employment.

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Nice Try

By Alfred Kempf
Categories: Blog, Employment Law
An employer tried to reduce its severance pay obligation by ceasing payments to a terminated employee when he found new employment. In the case (Allen v. Ainsworth in BC Supreme Court), the employer unilaterally gave working notice and removed the employee’s duties. In essence, the employee was being paid to stay away. When the employee found other employment during the notice period, the employer stopped paying his salary. The [...]

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The Lingo Of Litigation – The Sequel

By Alfred Kempf
Categories: Blog, Litigation
In a previous article I talked about phrases used early in the litigation process. In this article I will talk about some of the terms that come up later in the process.Arbitration

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Workplace Equality: When Is It Legal To Terminate An Employee On Parental Leave?

By Alfred Kempf
Categories: Blog, Employment Law
It is undeniable that employers must not discriminate against employees because of pregnancy parental leave. That being said, sometimes legitimate business reasons require an employer to reorganize their work force. In such circumstances, must an employer protect an employee who is pregnant or on parental leave when making decisions about how to downsize?According to a recent Canada Labour Arbitration decision, the answer is a resounding [...]

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Do Guarantees Mean What They Say?

By Alfred Kempf
Categories: Blog, Employment Law
In a recent decision in the Ontario Court of Appeal (Royal Bank of Canada v. Samson Management), the Court upheld guarantee language that was clearly designed to take away common-law protection for guarantors.  Under the common law, the guarantor might avoid his obligations where changes are made between the lender and borrower which affect the risk and exposure of the guarantor.

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Language Discrimination

By Alfred Kempf
Categories: Blog, Employment Law
Can an employer require employees to speak only a certain language in and around the workplace?  A related question is:  can an employer only hire employees with certain language skills?

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New Developments In Employee Leave For Family Obligations

By Alfred Kempf
Categories: Blog, Employment Law
A recent case in the Federal Court of Canada has nudged the door open a little further to more liberal rights for workers needing work accommodations to care for family members.In the case a Border Services employee wanted to work a set shift that was complementary to  her daycare arrangements. The employer did not offer such a shift. The employer argued that accommodating the employee would be a real hardship given that it services [...]

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The Lingo Of Litigation

By Alfred Kempf
Categories: Blog, Litigation
The legal profession uses all kinds of words and phrases that are quite mysterious to most people who have not been involved in the process. I will attempt to demystify some of these words and concepts:Legal action or proceeding:These are the words used to describe a dispute that is referred to the courts for resolution. Every action or proceeding is assigned a number when it is filed with a court.  Once an action or proceeding is filed [...]

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The Compensability Of Injuries During Sex

By Alfred Kempf
Categories: Blog, Personal Injury
Australia’s Federal Court of Appeal has allowed a claim for injuries suffered by a female worker caused during what must have been adventurous sex while on a business trip. The woman met up with a friend and after dinner and drinks returned to her motel room (paid for by her employer) where one thing apparently […]

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Does A Termination Release An Employee From A Covenant Not To Compete

By Alfred Kempf
Categories: Blog, Employment Law
A recent case in Alberta (Globex- 2011) suggests that an employer who terminates an employee without just cause and without sufficient notice repudiates the contract of the employment and thus releases the employee from all obligations including any clause preventing the employee from competition and solicitation of the employer’s customers and employees.The case is controversial and must be read with some caution because:

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Who Is Your Employer?

By Alfred Kempf
Categories: Blog, Employment Law
In most cases employees are not overly concerned about the precise legal identity of their employer.  It does become an important issue when the employment relationship breaks down and the employee is seeking a remedy.

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The Latest Word On Personal Use Of Work Computers

By Alfred Kempf
Categories: Blog, Employment Law
The Supreme Court of Canada, in a just-released decision (R. v. Cole), has indicated that an employee has a reasonable expectation of privacy with respect to personal information stored on employer's computer where personal use is permitted or reasonably expected.

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Bill 14 – The B.C. Government’s Response To Workplace Bullying

By Alfred Kempf
Categories: Blog, Employment Law
The BC provincial government recently passed into law Bill 14 (the Workers’ Compensation Amendment Act, 2011), which amends the mental stress provisions of the Workers’ Compensation Act (the “Act”) to address bullying and harassment in the workplace. As of July 1, 2012, an employee in British Columbia may have a worker’s compensation claim for a […]

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WorksafeBC’s Surprise For Homeowners

By Alfred Kempf
Categories: Blog, Employment Law
I was alarmed to learn that WorksafeBC is of the view that that a homeowner who hires a person to do a project that will take more than 24 man (person) hours must register with the WCB and pay premiums with respect to the work.  If the homeowner fails to do so he or she […]

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A Heads Up For Federally Regulated Employers (FRE)

By Alfred Kempf
Categories: Blog, Employment Law
Did you know that a FRE is restricted from terminating non-management employees having a year or more of service other than for cause or valid business reasons such as reduction of work?Under the Canada Labour Code an unjustly dismissed employee can file a complaint and can be awarded damages and/or reinstated if an employer terminates without just cause or economic reason.This right is not strong as that enjoyed by unionized employees but [...]

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Ask A Lawyer – Non-Competition Clauses?

By Alfred Kempf
Categories: Blog, Employment Law
I am leaving my long-term employer to work for a competitor.  I have not signed any agreements restricting my ability to compete. I have nothing to worry about right?Believe it or not, a departing employee may have obligations which arise outside of a written contract.Contractual provisions which restrict the ability of employees to compete with an employer are called non-competition and non-solicitation clauses.

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Take Your Notice And Shove It

By Alfred Kempf
Categories: Blog, Employment Law
Our Court of Appeal has in a recent decision involving a Sechelt bus driver caused me to rethink obligations on the giving and receiving of working notice of termination.In the case the employer and employee disagreed on the employee’s hours.  In frustration the employer gave five weeks’ notice of termination.  The employee had five years’ service and was entitled to more notice than that although it is unclear [...]

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Tough Economic Times — What Can An Employer Do?

By Alfred Kempf
Categories: Blog, Employment Law
With the decline in general economic activity and increasing competition from low wage countries what can employers do to lower their labor costs?

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The Independent Contractor Trap

By Alfred Kempf
Categories: Blog, Employment Law
An all too typical typical Friday afternoon call to an employment (or tax) lawyer goes something like this: "Oh my God… I have just been reassessed for my independent contractors. I've been told I must pay the government the CPP and EI deductions I didn't make over the last three years.”  To make matters worse, one of the contractors injured himself horribly in an accident and WCB says am not covered because I didn't [...]

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But Employment (Labour) Standards Said ……

By Alfred Kempf
Categories: Blog, Employment Law
This is one of the most frequent phrases heard by Employment lawyers. The phrase is uttered by employers who have terminated employees without cause have given only the notice (or pay) required under the Employment Standards Act (the “Act”). That should be the end of the matter. Right?Wrong. The notice provisions in the Act are the minimum standard. There are two very important other issues:

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I Have A Simple Question

By Alfred Kempf
Categories: Blog, Employment Law
These are the words most dreaded by an employment lawyer.  Quite frequently these calls come on a Friday afternoon moments before you are scheduled to meet friends for a cold one.Over the next few months I will attempt to debunk the myths of the “simple question” with common examples as follows:1. Joe has been away from work for six months on a medical leave - can I let him go?

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Five Important Reasons For Employment Contracts

By Alfred Kempf
Categories: Blog, Employment Law
Certainty – At the conclusion of employment (all employment concludes at some time) the precise consequences including severance pay is spelled out.  There should be no need to involve lawyers in most cases.Protection – The contract will eliminate any doubt about what information is confidential and will be protected.  The contract can also protect against unfair competition after conclusion of employment.Flexibility [...]

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Old, Old, Old Claims For Vacation Pay

By Alfred Kempf
Categories: Blog, Employment Law
Our Supreme Court in a recent wrongful dismissal claim, Pritchard v. The Stuffed Animal House Ltd., determined that an employee suing for wrongful dismissal could recover for unused vacation days going back some 12 years. The court reasoned that the limitation period for the commencement of an action to collect vacation pay would not start to run until the termination of employment. This case has serious consequences for those employers who [...]

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Notice Obligations To Employees On Leave

By Alfred Kempf
Categories: Blog, Employment Law
One of the most common questions faced by employment lawyers concerns how bad news about their employment status should be delivered to employees on leave. Leaves may occur for many reasons including maternity, illness, vacation, or leave of absence.This has been a controversial area but our Court of Appeal has provided a little guidance in a recent case - Lewis v. Terrace Tourism Society.  Ms. Lewis was on maternity leave when her [...]

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Notice Obligations To Employees On Leave

By Alfred Kempf
Categories: Blog, Employment Law
One of the most common questions faced by employment lawyers concerns how bad news about their employment status should be delivered to employees on leave. Leaves may occur for many reasons including maternity, illness, vacation, or leave of absence. This has been a controversial area but our Court of Appeal has provided a little guidance […]

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The Latest On Damages For Mental Suffering

By Alfred Kempf
Categories: Blog, Employment Law
The Ontario Court of Appeal in a 2010 decision (Piresferreira v. Ayotte) has purported to limit recovery by employees for damages caused by an employer for negligent and/or deliberate infliction of mental suffering. The Employee had at the trial level been awarded damages for future loss of income to the date of retirement since the court accepted that she was permanently scarred by the bullying conduct of her supervisor (which was condoned [...]

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Employment Law – The Dangers Of Guessing

By Alfred Kempf
Categories: Blog, Employment Law
A British Columbia employer has recently been ordered to pay an employee $10,000 in damages for bad-faith [Beggs v. Westport foods Ltd.]. The employer, in a small community, was advised by the employee that her house had burned down and that she wasn't sure when she would be able to return to work.The employee then went about the onerous tasks of setting up a new household, dealing with insurers, and other such issues.  Likely the [...]

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Employment Law Update – Damages For Mental Distress

By Alfred Kempf
Categories: Blog, Employment Law
The Ontario Court of Appeal has, at least for now, closed the door to damages for negligent infliction of mental distress by an employer to an employee. The case (Piresferreira v. Ayotte – [2010] O.J. No. 2224) reduced an award at trial of close to $500,000 to just below $150,000.

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Wrongful Dismissal Damages for Career Setback

By Alfred Kempf
Categories: Blog, Employment Law
In the last several years our top court (the Supreme Court of Canada) has tinkered with the amount of damages that should be awarded to employees who are terminated in an unenlightened way.

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