In what will no doubt be one of the most impactful employment law cases of the year, the Supreme Court of Canada in Wilson v. Atomic Energy of Canada has found that federally regulated employers cannot, absent economic reasons, terminate a non-unionized employee without just cause.
We've all heard one of the following stories... An employee in heavy industry is laid off because of a downturn in the economy. Or an office worker is let go because she doesn't get along with her supervisor.
As an employment lawyer, I have met with dozens of people who have suffered a workplace accident and are now fighting for their compensation benefits. Fortunately, there is an avenue for workers to contest unfair decisions from WorkSafeBC. The process is long and difficult, but in many circumstances workers are able to overturn the decision
The Employment Standards Act provides basic conditions of employment for workers under provincial jurisdiction throughout British Columbia. Although most of these standards are fairly clear, one area of frequent confusion is with respect to overtime.
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
Pushor Mitchell is pleased to announce Peas in a Pod: Effective Hiring Practices for Today’s Employer, the second in our new employment law series, Navigating the Seas of Change. In today’s era of labour shortages, many employers are frustrated by their inability to attract and retain qualified candidates. Unfortunately, with the BC Government estimating that […]
Whether a worker is engaged as an employee or as an independent contractor has several legal consequences. Although the parties usually sign a seemingly clear written contract, the Tax Court of Canada is regularly called upon to review the working relationship to determine whether the work was insurable and pensionable employment under the Employment Insurance […]
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% […]
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
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.
A tired Michigan BP gas station attendant who had just completed the night shift and wanted to go home put his boss on blast and lost his job as a result. The employee was waiting for his manager to relieve him and she was an hour late because, she said later, she had slept through her alarm. The employee locked up the store and went home, but not before taping a handwritten note to the inside of the glass doors of the gas station, where [...]
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.
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?
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.
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.
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 [...]
Many non-lawyers (and many non-employment lawyers) will make reference to a “rule of thumb” that provides that a terminated employee is entitled to one month per year of service.However, in two recent decisions, the British Columbia Courts have re-affirmed that there is no “formula” or rule of thumb that can be applied in determining how much notice an employee may be entitled to on the termination of their employment.
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.
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 [...]
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 [...]
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.
Most of us know that employers have the right to terminate an employee ‘for cause’ at any time during the employment relationship. If an employer has ‘cause’ to terminate an employee, the employer can do so immediately, without notice to the employee and without paying any severance. However, many lawsuits arise over the question of whether the employer, in fact, had ‘cause’ to terminate the [...]
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 [...]
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:
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.
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.
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 […]
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 […]
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 [...]
With the ever-changing technology and innovation of social media and the potential uses for it, a question that is often asked by employers is whether they can use social media to perform a ‘background check’ on potential employees. For example, if a candidate sends their resume to a potential employer, can that employer look them up on Facebook? Twitter? Can the employer use Google to give them a list of what is out there? And [...]
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.
The BC Government has introduced Bill 22, legislation to end the BC teacher’s strike. Bill 22 , called the Education Improvement Act, suspends the teachers’ strike action and sets a "cooling off" period, appoints a mediator to facilitate bargaining, and implements a new $165-million Learning Improvement Fund and other enhancements to K-12 education. Bill 22 […]
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 [...]
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 [...]
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:
Should an employer who terminates an employee without just cause be entitled to enforce non-competition covenants against that employee?Here is an example - a sales employee who is let go due to lack of work. The employer gives a few months’ severance pay. The employee at some point in his employment had agreed not to work for a competitor within a year of the termination of his employment. When he starts competing the [...]
This is the time of year when companies throw various social events to enjoy the Okanagan lifestyle with their employees, including golf tournaments, beach parties and family picnics. These events can be very successful, but employers need to be aware that they have legal obligations when alcohol is part of the event.
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?
Employers often struggle with how employees who are on unpaid leave should be dealt with when there are significant changes occurring in the workplace. The British Columbia Court of Appeal struggled with this issue too in Lewis v. Terrace Tourism Society and the outcome of the decision is instructive to employers and employees alike.
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 [...]
At Pushor Mitchell, we advise a wide range of clients on labour and employment issues relating to union and non-union settings in both the public and private sector throughout British Columbia. Rather than you give a blurb about all of the things our employment law group does we thought we would focus on some of the more unusual and innovative services offered by the group.
An employee that faces a unilateral change to their employment contract may have the right to treat the contract as wrongfully terminated and resign. In these ‘constructive dismissal’ situations, the employee, upon resignation, is entitled to claim damages in lieu of reasonable notice. It is important to note, however, that not every unilateral change amounts to constructive dismissal. The change must affect a fundamental term or [...]
A regulatory filing shows Apple CEO Steve Jobs’ compensation package remained the usual $1 in fiscal 2010. Apple Inc. said in a filing with the Securities and Exchange Commission on Friday it paid a salary of $1 to Jobs, who rejoined Apple in 1997 and has overseen the company’s unrivaled successes with the iPod, the […]
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 [...]
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 [...]
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 […]
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 [...]
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 [...]
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 –  O.J. No. 2224) reduced an award at trial of close to $500,000 to just below $150,000.
One of the factors marking the line between employees and independent contractors has been eligibility for employment insurance benefits (historically, only employees were eligible for EI coverage). As a result of changes to federal legislation, the line separating employees and contractors just became somewhat more blurry. http://www.pushormitchell.com/law-library/article/ei-changes-blur-line-between-employees-and-contractors
Airline tickets. Tuition costs. Meals and entertainment. Hotel rooms. Individually, these expenses don’t add up to much. Collectively, however, fraudulent reimbursement of common expenses accounts for 20% of cash misappropriation workplace fraud cases in Canada. No free lunch, a new white paper from Grant Thornton can help you understand and avoid some of these adverse […]
It’s a busy time in the news for the world of employment. Much of the recent news proves that humans can be the weak link in the chain when it comes to the employment relationship. In Edmonton, a man stands accused of invading a Workers’ Compensation Board office with a rifle and holding nine people […]
Many employers seem poorly trained in the fine art of conducting an investigation of employee misconduct. Unfortunately, their failure to conduct a thorough and objective investigation likely dooms their just cause position from the outset. Their poor rate of success in defending terminations on a just cause basis reveals this most clearly. Recent court cases […]
In British Columbia, there is legislation regulating every business’s rights and responsibilities with respect to the personal information it collects, uses and discloses. Every business that has employees and keeps a customer list needs to understand the rules relating to personal information.
The battle between employers and their former employees over the individual’s right to engage in post-employment competition is an ongoing one. While court decisions seem to sway back and forth, favouring one side or the other at various points in time, one area which consistently favours the individual relates to exploitation of her general knowledge of the industry.
The elimination of mandatory retirement at age 65 has already begun to have one predictable effect. Employers are struggling to figure out how to ease older employees, who may no longer be able to safely perform their job, out of the workforce.This is the result of changes made to B.C.’s Human Rights Code, effective in January of 2008. The key change was that human rights protections were extended, in the employment [...]
In employment law circles, the terms “enticement” or “inducement” refer to the more aggressive methods by which an employer will woo an individual to accept an employment offer. In a competitive job market, employers will often go to great lengths to convince a person to leave his/her existing employment and join the team. These efforts […]
In the employment world, many employers make use of outside consultants to advise on human resources policies and procedures. They may not realize that not everything they say to those consultants is necessarily protected by privilege. The use of outside consultants is particularly prevalent in the unionized world. Labour consultants and advisors perform many useful […]
The front page in Kelowna’s Saturday Okanagan newspaper blared “Cybersacked” this past weekend. The accompanying story told of a spa employee who found out she was fired by reading a message sent by her employer to her Facebook inbox. It must have been a slow news day for this to qualify as front page news […]
When the phrase “religious objector” is mentioned, most people would likely think of objections to military service. Few would be aware that the B.C. Labour Relations Code exempts certain individuals from union membership because, as a result of their religious beliefs, they object to joining trade unions. The Labour Relations Board may order that the […]
The elimination of mandatory retirement at age 65 has already begun to have one predictable effect. Employers are struggling to figure out how to ease older employees, who may no longer be able to safely perform their job, out of the workforce. This is the result of changes made to B.C.’s Human Rights Code, effective […]
When an employee is terminated from their employment, a question that sometimes arises is whether the employee is entitled to receive vacation pay on their severance pay. Under the Employment Standards Act, when an employee is terminated he or she is entitled to vacation pay on any severance pay which may be due under the […]
Statistics about how much personal time is being spent on the computer during working hours are concerning. Some experts’ estimates are as high as 25 to 40% for some employees and some say this is conservative. Unless we implement invasive big brother measures, and we are super-micro managers who know exactly what employees are doing […]
A recent letter to the editor in a Kelowna newspaper dealt with the situation of a restaurant employee who was held responsible for a customer’s “dine and dash”. The employer apparently compensated itself for the lost revenue by deducting the amount from the employee’s wages. This letter reminded me that, now and then, employers need […]
By now it is a well-known element of employee relations that employers must accommodate employees’ religious beliefs. Few employers, however, are likely to have realized the scope of beliefs which attract this obligation. As in all enumerated grounds set out in human rights legislation, the duty to accommodate religious beliefs requires positive steps on the […]
Wow! That’s the first thing that came out of my mouth when I read Gary Mason’s story in the Globe and Mail describing the new B.C. Ferries collective agreement. In that agreement, the B.C. Ferry and Marine Workers Union have relinquished the right to engage in strikes. Wow is right. Even more shocking is the […]
For years, the B.C. Human Rights Code has received scant attention in the corporate setting. Aside from the routine implementation of a harassment policy, many employers give little further thought to protection of human rights in the workplace. Part of the reason for this phenomenon has to be the fact that, historically, human rights damages […]
It is not at all uncommon for an employer to want to impose fundamental changes on employees during their employment. How the employer goes about making those changes will determine whether they are lawful (and, as a result, binding on the employee). The employer has a broad discretion to alter certain minor aspects of the […]
I frequently advise employers that a single instance of misconduct is normally not a sufficient basis for dismissing an employee summarily. This news is usually not received very happily by the employer. When the employee’s conduct is particularly egregious, however, even a single instance may suffice. The current rules relating to summary dismissal (termination without […]
Discussions relating to employees’ entitlements upon termination of employment tend to focus on the pay in lieu of notice (or “severance”) aspect. That is usually the most valuable element of the damages claimed by an employee in an action for wrongful dismissal. Too little attention is given to the issue of the value of the […]
One of the more challenging, and sometimes frustrating, aspects of employment standards in B.C. is managing the obligation to pay at overtime rates. The overtime rules are not exactly simple, their impact can create a heavy cost burden, and many employers view them as restrictive of flexibility in scheduling. In very general terms, employers must […]
One of the effects of last year’s illegal strike by the B.C. Teachers Federation is the lingering acrimony between members who joined the strike and those who didn’t. Union members who refused to participate in the illegal action were in the news this week as several of them were declared to be in “bad standing” […]
Canadian courts are becoming increasingly protective of employees claiming to have been harmed by their employer’s conduct. Nowhere is that more evident than when it comes to assessing damages against employers for harassment. We are truly living in an age of judicial activism when it comes to the protection of the rights of employees. Starting […]
The proliferation of so-called blogs has created an unprecedented opportunity for individuals to publish their thoughts to a huge audience. Unfortunately for employers, the blogging trend has created yet another workplace headache. For those of us still getting accustomed to listening to music on compact discs, a blog (or weblog) is simply a website on […]