Publications

• Legal Ease  
  Robert Smithson's column, "Legal Ease", is published weekly in a variety of print and electronic media in B.C. and nationally. Robert's column addresses issues relating to the employment relationship which are of interest to employers and employees alike. These columns are based on the law in existence at the time they were prepared. The law, however, is constantly evolving and we cannot provide any assurances that the legal concepts addressed remain valid. For this reason, we recommend that you obtain specific legal advice in relation to all employment issues.
   
  • 5/5/2008 - A DISMISSAL BY ANY OTHER NAME
    The distinction, or lack thereof, between wrongful dismissals and constructive dismissals is one which has challenged courts, lawyers, and judges. So debatable are the differences that the Supreme Court of Canada has recently seen fit to weigh in on this subject.
     
  • 4/28/2008 - SUPREME COURT STRIPS DUE PROCESS RIGHTS FROM PUBLIC OFFICE HOLDERS
    For half a century, a challenging area of employment law has been the application of due process rights enjoyed by public office holders. The Supreme Court of Canada has now issued a seminal decision which severely curtails those rights.
     
  • 4/21/2008 - OCCUPATIONAL REQUIREMENTS AND OLDER WORKERS
    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.
     
  • 4/14/2008 - EMPLOYMENT LAW IS JUST ROCK, PAPER, SCISSORS
    It amazes me how few employers truly understand the sources of law, and their interaction, which impact the employment relationship. In trying to understand the various statutory, contractual, and common law influences on the employment relationship, all they need to know are the rules of rock, paper, scissors.
     
  • 4/7/2008 - B.C.’s GOVERNMENT TAKING ACTION TO PROTECT WORKERS
    In the last few months, B.C. government departments have implemented a dizzying array of workplace rules designed to protect workers.
     
  • 3/17/2008 - B.C. FERRIES DISASTER DEMONSTRATES ABDICATION OF DUTY
    One of many reports into the tragic sinking of the Queen of the North, this one authored by the Transportation Safety Board, was released last week. It indicates that the navigational crew aboard the doomed ferry failed in executing their responsibility for the safety of the vessel and its passengers and crew.
     
  • 3/10/2008 - SHOULD PERMISSIBLE PAYROLL DEDUCTIONS BE EXPANDED?
    British Columbia’s Employment Standards Act governs the range of payroll deductions which are permissible. Aside from the normal statutory deductions, the range of allowable deductions is extremely narrow and is jealously guarded by the Employment Standards Branch. I have to wonder whether the Branch is being too stingy in the categories of deductions it allows.
     
  • 3/5/2008 - DON’T BLAME EMPLOYEES FOR EMPLOYER’S DEEDS
    Is it fair to saddle an employee with the past deeds of his employer? It’s not a frequent occurrence but occasionally an individual is defamed by having been publicly associated with the actions of a former employer.
     
  • 2/25/2008 - COLLECTIVE BARGAINING PROVES ITS WORTH
    I’ve often been heard to say that, in many ways, trade unions are no longer relevant. One area, however, where unions can still earn their keep is in the process of collective bargaining.
     
  • 2/18/2008 - EMPLOYERS WON’T BE CHEERING ANOTHER STATUTORY HOLIDAY
    18th, the third Monday of the month, will be celebrated as a day off in Ontario and Manitoba this year. Chances are, within a few years it will have become a statutory holiday across the country.
     
  • 2/11/2008 - EMPLOYERS CLIMBING ON OLDER WORKERS’ BANDWAGON
    The shiny, new era of the elimination of mandatory retirement policies in British Columbia is but a few weeks old. That legal change seems to have come at an opportune moment for older workers.
     
  • 2/4/2008 - COURTS RECOGNIZE LIABILITY OF EMPLOYMENT AGENCIES
    In good times, when candidates for employment are plentiful, many employers utilize employment agencies to locate talent. In tough times, when the labour pool seems particularly lean, employers may rely even more heavily on these outside consultants.
     
  • 1/28/2008 - NEW FUEL PREPAY RULES TAKE EFFECT
    The B.C. government has enacted new workers compensation rules governing employees working alone or in isolation. These rules come into effect on February 1, 2008.
     
  • 1/21/2008 - HOLIDAY PARTY FALLOUT OF ANOTHER KIND
    I have written many times on the topic of avoiding litigation resulting from serving alcohol to employees at office parties. That scenario can, and has, led to expensive liability for employers when a tragic accident is the result.
     
  • 1/13/2008 - WORKPLACE IS NO PLACE FOR THREATS
    Now and then every married employee vents about her employment to her spouse. When the spouse reacts by saying that he wants to “beat” and “kill” the boss, the employee had best not repeat those statements in the workplace.
     
  • 1/7/2008 - WORKPLACE DRUG TESTING ENJOYING A RARE HIGH
    In 2006, the Alberta Court of Queen’s Bench considered the situation of John Chiasson. Mr. Chiasson was offered a job by Kellogg Brown & Root but was dismissed only a few days later after his drug test revealed recent marijuana use.
     
  • 12/31/2007 - STRANGE TALES FROM THE EMPLOYMENT WORLD
    In the latter half of 2007, as expected, weird things continued to occur in the employment context. Here are a few of the stranger events.
     
  • 12/17/2007 - WALKING THE WALK AS AN “EMPLOYER OF CHOICE”
    In these days of the shrinking labour force and shortages of employees in many industries, it is fashionable for companies to portray themselves as an “employer of choice”. This is a fancied-up way of saying that the company is a great place to work.
     
  • 12/10/2007 - TAPE RECORDED PROFANITY IS EMPLOYEE’S DOWNFALL
    Just cause for summary dismissal from employment is a threshold that can often seem unattainable to employers. The standard is a high one because summary dismissal is the ultimate form of discipline, carrying with it the penalty of the loss of the right to working notice (or pay in lieu thereof).
     
  • 12/3/2007 - B.C. ACTS TO PROTECT LONE AND ISOLATED WORKERS
    Effective February 1, 2008, B.C. will enact new workers compensation rules governing employees working alone or in isolation. These rules are intended, among other things, to address the underlying causes of the tragic death of Maple Ridge gas station attendant Grant Depatie.
     
  • 11/26/2007 - ARMED FORCES RESERVISTS TO RECEIVE JOB PROTECTION
    The federal government will be introducing legislation protecting the jobs of armed forces reservists while they are absent on training and active duty. The legislation, announced recently by federal labour minister Jean-Pierre Blackburn, would apply to armed forces reservists employed by the federal government. It would also apply to private sector employers in the federal jurisdiction (chartered banks, railways, airlines, interprovincial trucking, and a few other selected industries).
     
  • 11/19/2007 - HOW NOT TO ACCOMMODATE A DISABLED EMPLOYEE
    Every employer is (or, at least, should be) aware of its statutory duty to accommodate disabled employees. It seems, however, that some are more effective at meeting this duty than others. Or, perhaps it’s more appropriate to say that some are worse at it than others.
     
  • 11/12/2007 - DISCLOSING WORKPLACE RELATIONSHIPS IS THE BEST STRATEGY
    Let’s face it, once we are sprung from high school or a post-secondary institution of one sort or another, the workplace becomes our primary venue for socializing. Notwithstanding the occasional (or even frequent) visit to the local watering hole of choice, we still spend more hours in the presence of co-workers than any other group.
     
  • 11/5/2007 - PROTECT EMPLOYEES BY NOT SERVING THEM ALCOHOL
    When Hallowe'en is past and holiday lights are making their appearance, we can be sure that office party season isn't far behind. It's this time of year when employees face a heightened risk of accidents (primarily vehicular) due to impairment. That's hardly an upbeat, "seasons greetings", way for me to start off, but it's a message every employer needs to hear.
     
  • 10/29/2007 - COURTS USURPING ROLE OF EMPLOYMENT STANDARDS BRANCH
    The traditional, and only, avenue for enforcement of employment standards rights in B.C. used to be a statutory complaint submitted via the Employment Standards Branch. The Employment Standards Tribunal’s monopoly on adjudicating claims for items such as overtime pay now seems to have come to an end.
     
  • 10/22/2007 - MANDATORY DRUG TESTING NOT AS EASY AS IT SEEMS
    The tragic sinking of B.C.’s ferry, the Queen of the North, combined with recent Transportation Safety Board findings arising from that accident have led to calls for mandatory drug testing in the transportation industry. It’s easy enough to react emotionally to this tragedy with a call for tough drug testing measures, but it’s a whole lot harder to make that approach work.
     
  • 10/15/2007 - COPING WITH THE RETIREMENT OF MANDATORY RETIREMENT
    I can confidently predict that, on the morning of January 1, 2008, the world will not come to an end. The sun will come up (here in the sunny Okanagan valley, at least), employees will go to work and grumble about their bosses, and managers will go to work and grumble about their employees. Almost everything will be like any other day at the office.
     
  • 10/9/2007 - A TALE OF TWO VACATIONS
    Dealing with requests for annual vacation time by employees is a managerial task that goes along with being an employer. Generally, the scheduling of employee vacation time goes off without a hitch but there are occasions when the employer and employee butt heads over the issue.
     
  • 9/24/2007 - SCHOOL BOARD CAN’T FIRE CONVICTED KILLER WHO LIED ABOUT RECORD
    How would you feel, as an employer, if you found out an employee lied about his criminal past when filling out his application form? How would you feel if you found out he is a convicted killer? Would you feel that was a sufficient basis to dismiss him from his employment?
     
  • 9/17/2007 - WHEN DOES A DISABILITY FRUSTRATE THE EMPLOYMENT RELATIONSHIP?
    I routinely tell clients (and anyone else who cares to listen) that dealing with employees on extended disability leave is one of the toughest challenges facing the human resources professional. One of the very complex aspects of this challenge is determining the point in time when the absence “frustrates”, in a legal sense, the contract of employment.
     
  • 9/10/2007 - R.C.M.P.’s CULTURE SHIFT TYPIFIES WHISTLEBLOWER CHALLENGE
    The R.C.M.P.’s commissioner wants to change his force’s culture to encourage members to raise concerns about internal problems. William Elliott says he wants to make it easier for lower-ranking members of the force to blow the whistle on questionable practices.
     
  • 9/4/2007 - EMPLOYEES SIGNING A RELEASE SHOULD EXPECT TO BE BOUND
    Employees forced to leave their employment are often provided with a payment in lieu of working notice, also known as a “severance package”. The employer will often demand that, as a condition of making that payment, the employee must sign a form of release.
     
  • 8/27/2007 - IN SUPPORT OF THE SIMPLE SEVERANCE SETTLEMENT
    When employees are forced to leave their employment, it is common for the employer to offer a payment in lieu of working notice of termination. This is frequently referred to as “severance”. I am an advocate of keeping the structure of these severance payments as simple as possible.
     
  • 8/20/2007 - EMPLOYEES IN FEDERAL JURISDICTION STILL FACE MANDATORY RETIREMENT
    Casual followers of the news can be forgiven for experiencing some confusion when reading this week that Air Canada pilots can be forced to retire at age 60. With all the news about the abolition of mandatory retirement across this country, it is easy (but incorrect) to assume that mandatory retirement is a thing of the past.
     
  • 8/13/2007 - EMPLOYEE NOT RESPONSIBLE FOR “DINE AND DASH” CUSTOMER
    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.
     
  • 8/6/2007 - EMPLOYEES’ GENERAL KNOWLEDGE IS THEIR OWN TO EXPLOIT
    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.
     
  • 7/30/2007 - BLACK’S LITIGATION STANCE MIRRORS THAT OF MANY EMPLOYERS
    The story of Conrad Black’s recent conviction has now been told, thoroughly, by way of every news medium in this country. Black, defiant to the end, rode a losing case to what could only be described (assuming his appeal doesn’t change things) as a disastrous result.
     
  • 7/16/2007 - CONRAD’S TALE SERVES AS A WARNING TO CORPORATE EXECUTIVES
    One chapter in Conrad Black’s battle with American authorities came to a close last week. Lord Black came out on the losing end but perhaps he can rationalize the result on the basis that it could have been a whole lot worse.
     
  • 7/9/2007 - Class Actions May Be Coming To Employers Near You
    The class action lawsuit is a relatively new phenomenon in Canada. In the employment context, there are precious few examples of this form of litigation. As a result of some recent court decisions, however, employers near you may soon be the target of class actions.
     
  • 6/29/2007 - Strange Tales From The Employment World
    It’s time for my semi-annual roundup of the weirder things going on in the world of employment.
     
  • 6/25/2007 - Are Compensation Cuts The Trend Of The Future?
    News reports out of the United States this week indicated that auto parts maker Delphi Corp. has reached a tentative deal, with the United Auto Workers, involving substantial pay cuts for employees. I’m here to say that we should all get accustomed to headlines of this type because they aren’t likely to end with Delphi.
     
  • 6/18/2007 - Having The Qualifications Doesn’t Mean Getting The Job
    The longer I practice as an employment lawyer, the more I wonder about some of the claims which are litigated. Some people just seem determined to utilize the legal system to achieve a benefit they weren’t able to obtain on their own.
     
  • 6/11/2007 - Charter Right to Collective Bargaining Proclaimed
    In the dictionary, next to the phrase “Gordian knot”, there should be a photograph of a collective agreement between the B.C. government and a public sector union. How better to describe the strange, turbulent world of public sector collective bargaining in this province?
     
  • 6/4/2007 - DAMAGES FOR LOSS OF CAREER CONFIRMED
    Followers of court decisions might be forgiven for thinking that large damage awards given by lower courts tend to be overturned by the courts of appeal. This is, in fact, often the case and perhaps that’s the way the system should work (lower courts stretching the boundaries of previous decisions and the higher courts stepping in when the limits have been stretched too far).
     
  • 5/28/2007 - PLANNED POISONING ISN’T JUST CAUSE AFTER ALL
    Employers reading this column in April, 2005 may have discovered grounds for optimism that the concept of just cause wasn’t dead. That was when I originally wrote about the dismissal of a C.B.C. employee who sent tainted chocolates to a critic.
     
  • 5/21/2007 - B.C. ACTS TO PROTECT YOUNG AND NEW WORKERS
    WorkSafeBC has announced changes (to Part 3 of this province’s Occupational Health & Safety Regulations) pertaining to new and young workers. These changes are specifically intended to address the extraordinarily high injury rates amongst these categories of employees.
     
  • 5/14/2007 - GIVING NOTICE OF CHANGES TO EMPLOYMENT TERMS
    Employers frequently wish to impose changes on employees during the course of their employment. There has been something of a debate in the courts about how the employer must go about making those changes for them to be lawful and binding on the employee.
     
  • 5/7/2007 - B.C. FERRIES FIRINGS WILL TEST UNION’S METTLE
    Two announcements from opposing sides this week have set a tone for labour relations at B.C. Ferries that will endure for many months. First, management announced that the deck crew of the Queen of the North (the second officer, fourth officer, and quartermaster) have been fired. Then, inevitably, the B.C. Ferry and Marine Workers’ Union announced that it will be grieving those dismissals.
     
  • 4/30/2007 - B.C. ANNOUNCES END OF MANDATORY RETIREMENT
    After months of anticipation, the B.C. government has introduced legislation which will render illegal employers’ policies imposing mandatory retirement at age 65. This change, which is to become effective on January 1 of 2008, arguably ushers in a new era in employment law in this province.
     
  • 4/23/2007 - PROTECTING CLIENTS FROM SOLICITATION BY FORMER EMPLOYEES
    The pendulum never seems to stop swinging in relation to the degree to which the law permits employers to restrict the activities of former employees. Just a few weeks ago, I reported on a rather stunning decision by B.C.’s Court of Appeal that certain professionals should be able to copy their employer’s client information for later use.
     
  • 4/16/2007 - RECOVERING MONEY FROM CORPORATE EXECUTIVES
    We live in an era of intense scrutiny of the payments made to corporate executives such as Conrad Black. Our fascination with the astronomical salaries and bonuses paid to these select few explains the attention Black’s trial has attracted in the news media.
     
  • 4/9/2007 - TAKING STEPS TO ADDRESS WORKPLACE STRESS
    If my practice is any indication, employment lawyers across this country are spending increasing amounts of time advising employers on dealing with stress in the workplace. That means human resource professionals are also dealing with these problems more frequently on a day-to-day basis.
     
  • 4/2/2007 - WHEN A POLITICAL PROTEST TURNS INTO A PICKET LINE
    British Columbia is well known for its active unions, particularly in the public sector. It is in that sector that political protests against government policy have tend to germinate.
     
  • 3/26/2007 - EMPLOYERS MUST ACCOMMODATE ALL RELIGIOUS BELIEFS
    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.
     
  • 3/11/2007 - IS B.C. FERRIES CONTRACT THE WAVE OF THE FUTURE?
    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.
     
  • 3/5/2007 - SOMETIMES STAYING EMPLOYED MEANS ACCEPTING RESPONSIBILITY
    The challenge of knowing what amounts to just cause for summary dismissal, and what doesn’t, can stymie employers and their lawyers alike. It can be extremely difficult to estimate how a court will react to allegations of misconduct (and the assertion that they amount to cause for summary dismissal).
     
  • 2/26/2007 - TERMINATED EMPLOYEES MAY BE COMPELLED TO RETURN TO THEIR OLD JOB
    An employee who sues her former employer for damages for wrongful dismissal has a legal obligation to mitigate her losses. She can satisfy this duty by making reasonable efforts to find other employment (or to otherwise generate earnings to replace her lost salary).
     
  • 2/19/2007 - ARE THE R.C.M.P.’S INFORMATION DEMANDS FROM VOLUNTEERS EXCESSIVE?
    A news story published in B.C.’s interior this weekend has civilian volunteers questioning the amount of information being demanded of them by the R.C.M.P. It appears the volunteers may have good reason to be concerned.
     
  • 2/12/2007 - CAN DEPARTING PROFESSIONALS COPY EMPLOYER’S CLIENT INFORMATION?
    The implied legal rules relating to competition with a former employer are frequently a topic of contention in court. The rules themselves are generally fairly stable and the differences tend to be in the degree to which judges choose to enforce them.
     
  • 2/5/2007 - EMPLOYER PAYS FOR ENDING OFFICER’S CAREER
    In 2006, the B.C. Supreme Court issued a ground-breaking decision involving a police officer who suffered severe workplace harassment. The damages awarded in that case, just shy of one million dollars, compensated the plaintiff for the loss of her future career.
     
  • 1/29/2007 - EMPLOYERS NEED CONTRACTS FOR COMMISSIONED SALESPEOPLE
    It is a mantra amongst employment lawyers that the first thing employers should do to improve their employee relations is implement employment contracts. Employment contracts define the framework of the relationship and, perhaps most importantly, the terms upon which the relationship will end.
     
  • 1/22/2007 - AMERICAN CONTRACT CLAUSES HAVE NO IMPACT HERE
    It is a common occurrence that Canadian employment contracts contain clauses originating in the United States. Canadian contracts adapted from American precedents or downloaded off the internet will often feature this error.
     
  • 1/15/2007 - DISCRIMINATION IN ADVERTISING UNDERMINES HIRING PROCESS
    A classified advertisement was recently brought to my attention because its contents seemed blatantly discriminatory. The advertisement sought an assistant custodian to work evenings at a local Christian-faith school.
     
  • 1/8/2007 - ABOLISHING MANDATORY RETIREMENT POSES GREATER CHALLENGE FOR EMPLOYERS
    In B.C., the Premier’s Council on Aging and Seniors Issues has recommended the abolishment of so-called “mandatory retirement”. If put into effect, this recommendation would see the removal of the portions of the B.C. Human Rights Code preventing persons aged 65 or older from complaining of age discrimination.
     
  • 12/31/2006 - B.C. DEFINES “FAMILY MEMBER” FOR COMPASSIONATE CARE LEAVE PURPOSES
    Last year, British Columbia amended its Employment Standards Act to provide compassionate care leave for employees. This amendment provided for up to 8 weeks (at a time) of unpaid leave for employees to provide care or support to an ailing family member.
     
  • 12/18/2006 - STRANGE TALES FROM THE EMPLOYMENT WORLD
    Every six months or so I like to take time out to look at the weirder things occurring in the employment world. These stories are definitely all strange and are definitely all true.
     
  • 12/11/2006 - CONFIDENTIAL REFERENCES NOT SO CONFIDENTIAL
    Last week’s column (dealing with unsolicited employment references) generated some reaction, particularly on the topic of the confidentiality of such communications. This week, I will expand on that subject.
     
  • 12/4/2006 - EMPLOYERS SHOULD AVOID UNSOLICITED REFERENCES
    It is not uncommon for employers to seek to offer an unsolicited reference relating to a former employee. More often than not, the content of such a reference will be negative.
     
  • 11/28/2006 - THE PERILS OF SERVING ALCOHOL TO EMPLOYEES
    Last week’s coincidental arrival of winter and the holiday party season was my annual signal to address the perils involved with serving alcohol at company events. All employers who host annual staff events during the holiday season are well-advised to take a few moments to consider the risks they take in hosting the seasonal party.
     
  • 11/20/2006 - PROTECTING CLIENTS’ PERSONAL INFORMATION
    In employment circles, issues relating to protection of employee personal information tend to get most of the attention. That is to say that the focus tends to be on the degree to which an employer may demand, and utilize, personal information relating to its employees.
     
  • 11/14/2006 - ENDING MANDATORY RETIREMENT NO PANACEA FOR LABOUR SHORTAGE
    It seems that each week brings new word of provinces moving towards abolishing the practice of mandatory retirement. Several provinces have already done so and it appears Saskatchewan is now headed in that direction as well.
     
  • 11/6/2006 - NON-PROFIT ORGANIZATIONS CAN DISCRIMINATE IN SOME SITUATIONS
    British Columbia’s Human Rights Code prohibits discrimination on identified grounds in a wide variety of circumstances. A little known exception to those rules, however, allows some organizations to discriminate by granting preference to members of certain identifiable groups.
     
  • 10/30/2006 - COMPANIES FACING CHARGES FOR UNSAFE WORK PRACTICES
    In 2004, the Criminal Code was changed in relation to criminal liability of corporations as a result of their work practices. The changes were an attempt to modernize the law of corporate crime and were prompted by the 1992 Westray mine disaster in Nova Scotia.
     
  • 10/23/2006 - EMPLOYERS FACE PROSPECT OF MENTAL DISTRESS DAMAGES
    If life weren’t depressing enough for employers (who already face a wide array of damages claims by former employees) the menu of damages claims may have just become a little broader. Breaking from century-old precedent, the Supreme Court of Canada has rejected the view that mental distress damages are not generally recoverable for breach of contract. That is, potentially, bad news for employers.
     
  • 10/16/2006 - CHILD LABOUR LAWS ABROAD NOT AS STRINGENT AS IN CANADA
    Recent news reports indicate that India is on the verge of banning employment of children under age 14. Estimates suggest that India is home to the world’s largest population of working children (some suggesting there are as many as 60 million child workers there).
     
  • 10/10/2006 - GOVERNMENTS PLUGGING HOLES RELATING TO EMPLOYEES
    The past week saw two significant announcements by government departments of legislation meant to benefit certain categories of employees. These are two more instances of government stepping in to regulate the uneven playing field on which employees find themselves.
     
  • 10/2/2006 - HAS THE B.C. HUMAN RIGHTS TRIBUNAL COME OF AGE?
    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.
     
  • 9/25/2006 - AVOIDING THE EVILS OF EMAIL
    As the modern office relies more and more on electronic means of communication, employers sometimes find themselves overlooking the personal touch. When that oversight occurs in the context of termination of employment, it’s definitely time to rethink the corporate communication strategy.
     
  • 9/18/2006 - BETTER DECISIONS MAKE FOR BETTER EMPLOYEE RELATIONS
    Employee relations are, at their essence, about the decisions employers make every day affecting their employees. Learning how to make better decisions will surely lead to improved employee relations and that will, in turn, contribute to the employer’s bottom line.
     
  • 9/11/2006 - EMPLOYERS STILL FALLING INTO INDEPENDENT CONTRACTOR TRAP
    Obtaining services through the use of independent contractors, despite being more and more popular, continues to be a risky business strategy. The costs of having a so-called independent contractor deemed, after the fact, to be an employee can be tremendous.
     
  • 9/6/2006 - ONEROUS TERMS NOT NECESSARILY UNCONSCIONABLE
    A frequent topic of debate in wrongful dismissal cases is the legality of a severance formula contained in an employment contract. Typically, the former employee will be claiming the severance formula should be disregarded while the employer will be seeking to rely upon it.
     
  • 8/29/2006 - LENGTH OF TENURE INFLUENCES NOTICE ENTITLEMENT
    The Canadian common law of employment establishes most employees’ entitlement to working notice of termination. If working notice is not provided, the employee must be paid the equivalent wages (this is commonly referred to as severance pay or pay in lieu of notice).
     
  • 8/21/2006 - PAYDAY LOAN COMPANY CHARGING CRIMINAL FEES
    A number of class action law suits have recently been certified across Canada against so-called payday loan companies. The law suits allege the fees charged in exchange for short-term loans exceed the maximum allowed in the Criminal Code. The first ruling in one of these cases was given recently in B.C. Supreme Court against A Okay Payday Loans Inc.
     
  • 8/14/2006 - OFFER CONSIDERATION FOR CONTRACT CHANGES
    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).
     
  • 8/7/2006 - PRE-HIRING DRUG TESTING IS UNDER ATTACK
    The legality of pre-employment drug testing is an ongoing battleground between employers and human rights tribunals (and, ultimately, the courts). The question of whether an employer can impose pre-employment drug testing and disqualify candidates on the basis of a positive result is one which raises difficult legal questions.
     
  • 7/31/2006 - EGREGIOUS CONDUCT IS GROUNDS FOR SUMMARY DISMISSAL
    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.
     
  • 7/24/2006 - TERMINATION OF EMPLOYMENT TRIGGERS BENEFITS LIABILITIES
    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.
     
  • 7/17/2006 - UNDERSTANDING WHAT MAKES AN APPROPRIATE INTERVIEW QUESTION
    Employment lawyers are often asked about the questions employers can and cannot ask of applicants during the hiring process. Many are operating under the misunderstanding that no questions can be asked relating to certain personal characteristics or circumstances.
     
  • 7/10/2006 - EMPLOYERS MUST MAINTAIN PRIVACY WHEN HIRING
    B.C.’s Personal Information Protection Act compels employers to protect the privacy of employees. The hiring process is one period when the employer’s collection, use, and disclosure of employees’ personal information is most prevalent. Fortunately, B.C.’s Privacy Commissioner has now issued a series of guidelines for employers to follow during the hiring process.
     
  • 7/4/2006 - B.C.T.F. LOSES THIS ROUND OF COLLECTIVE BARGAINING
    As the months (then days, then hours) ticked away and collective agreements were completed for dozens of public sector unions this spring, it seemed inevitable the last union left unsigned would be the B.C. Teachers Federation. After all, this is British Columbia and in this province the B.C.T.F. has (with all due respect to the B.C. Nurses Union) staked a claim to the title of most hard-nosed of the public sector unions. But, as is often the case, the last, desperate moments of collective bargaining produced a landmark deal with which both sides seem willing to live.
     
  • 6/21/2006 - STRANGE TALES FROM THE EMPLOYMENT WORLD
    It’s time for a semi-annual checkup on the weirder things going on in the world of employers and employees.
     
  • 6/19/2006 - POTENTIAL DAMAGE TO REPUTATION CAN AMOUNT TO CONSTRUCTIVE DISMISSAL
    Conduct by an employer which damages, or even potentially damages, the reputation of an employee may be grounds for damages for constructive dismissal. This is the spectre raised by the lawsuit commenced recently against B.C. Ferries by its former direct
     
  • 6/16/2006 - IS CANADIAN EMPLOYMENT LAW BECOMING AMERICANIZED?
    Canadian employment law has, in the last several years, seen some unprecedented awards handed out to wrongfully dismissed employees. Is this a signal that Canadian courts are heading in the same direction as those in the United States?
     
  • 6/5/2006 - ACCOMMODATION REQUIRES BALANCING OF INTERESTS
    The existence of the employer’s duty to accommodate employees with disabilities is well known. The application of that duty, however, can provoke valid feelings of frustration and dissatisfaction on both sides.
     
  • 5/29/2006 - HIGH TECH EMPLOYERS CAN AVOID OVERTIME RULES
    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 employer
     
  • 5/23/2006 - UNION STRIKE VOTE IS NO REASON TO PANIC
    A prerequisite to a legal strike in most jurisdictions is a strike vote amongst eligible voting union members. Unions typically hold up the results of the strike vote as an indication of solidarity and actual support for a strike. In reality, a strike v
     
  • 5/17/2006 - PROPER INVESTIGATION SUPPORTS JUST CAUSE
    Many employers are 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 ra
     
  • 5/8/2006 - MORE DEVELOPMENTS IN HOST LIABILITY
    Two significant court cases were decided recently in the context of host liability as a result of the service of alcohol. One case occurred in the so-called commercial host context and the other involved a social host.
     
  • 5/1/2006 - UNIONS CAN’T BLACKBALL MEMBERS FOR REFUSING TO JOIN ILLEGAL STRIKE
    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 we
     
  • 4/24/2006 - TAKE STEPS TO PROPERLY ESTABLISH VOLUNTEER RELATIONSHIP
    Many organizations, mostly charitable or non-profit, now rely upon volunteers to do the leg-work of providing services. But, as with employees and contractors, the use of volunteers requires a certain level of legal understanding and expertise.
     
  • 4/18/2006 - EMPLOYERS TAKING RISK APPEALING EMPLOYMENT INSURANCE DECISIONS
    Pretty much the first thing a fired employee does is to apply for employment insurance benefits. When the employee has been fired for just cause reasons, the issue arises whether the individual is entitled to collect E.I. benefits. Often, at its own ris
     
  • 4/10/2006 - EMPLOYERS PAYING FOR HARASSMENT
    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.
     
  • 4/3/2006 - EMPLOYERS ADDRESSING EMPLOYEE BLOGGING
    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.
     
  • 3/27/2006 - B.C. INTRODUCES COMPASSIONATE CARE LEAVE
    The provincial government of British Columbia has introduced amendments to the Employment Standards Act providing compassionate care leave for employees. This legislation serves as a complement to recent federal legislation providing employment insurance
     
  • 3/20/2006 - CORONERS JURY RECOMMENDS EMPLOYEE TRAINING
    A coroner’s jury has made its determination after its inquest into the death of Evan Larson while he was shoplifting at a Kelowna electronics store. The jury concluded Mr. Larson’s death was an accident, but recommended staff training on dealing with sho
     
  • 3/13/2006 - EMPLOYEES CHALLENGING TECHNOLOGY ENCROACHMENTS
    It is a news story to which we might as well get accustomed, because we’ll be seeing a lot more of it in years to come. It is a story of employees pushing back against their employer’s use of new technology which, arguably, encroaches on the privacy of t
     
  • 3/6/2006 - PUBLIC SERVANTS ARE NOT OPEN TARGETS
    In a province such as British Columbia, where public sector labour relations are constantly newsworthy, there can be a tendency to openly criticize employees of the public service. Public servants are not, however, open targets and there can be significa
     
  • 2/28/2006 - CONTROLLING WORKPLACE CELLULAR TELEPHONE USE
    As cellular telephone technology evolves more and more rapidly, it seems that just about everyone now carries a telephone on their person. Many of those people are carrying their telephones to work.
     
  • 2/21/2006 - EMPLOYERS SHOULD STEP LIGHTLY IN RESTRICTING OFFICE ROMANCES
    As surely as the sun will rise each day, employees will form personal relationships with co-workers. Some employers frown on such relationships and attempt to take preventative steps. The degree to which the employer can lawfully intervene to restrict s
     
  • 2/13/2006 - RESTRICTIVE COVENANTS SUBJECT TO LIMITS
    Restrictive covenants are often utilized by employers to govern the post-employment activities of key employees. The employer seeks to protect itself from damage imposed by former employees engaging in competitive business activities. There is a range o
     
  • 2/6/2006 - GIANT MINE DISASTER A LESSON FOR MANAGEMENT, UNIONS, AND EMPLOYEES
    In 1992 the Royal Oak Mines Inc. and its union were engaged in a bitter labour dispute at the Giant Mine in the Northwest Territories. Roger Warren, a union member frustrated with the situation, decided he needed to get something done so he set an explos
     
  • 1/30/2006 - EMPLOYERS CANNOT RECOVER COSTS OF THEFT FROM EMPLOYEES
    Recently, this column addressed the issue of employers who treat their employees as security guards. That item cautioned employers about the risks and costs of allowing employees to place themselves in danger to protect the employer’s assets. One way in
     
  • 1/26/2006 - EMPLOYEES’ PRIVATE ACTIVITIES IMPACT EMPLOYMENT
    The private lives of employees are generally of little concern to their employer. To a large degree, employers take a hands-off approach to judging their employees’ chosen activities.
     
  • 1/18/2006 - EMPLOYEES ARE NOT SECURITY GUARDS
    The death of gas bar attendant Grant DePatie last March in Maple Ridge, B.C. has sparked an ongoing debate a debate about workplace safety rules. WorksafeBC has announced it will look at changing safety rules for late night gas station workers as a resul
     
  • 1/9/2006 - JUST CAUSE FOR ONGOING POOR CONDUCT
    Just cause for summary dismissal from employment is a threshold which often seems unattainable for employers. The standard is a high one because summary dismissal is the ultimate form of discipline. It carries with it the heavy penalty of the loss of th
     
  • 1/2/2006 - HAVE EMPLOYMENT CONTRACT SIGNED BEFORE JOB COMMENCES
    The new year is an opportune time to return to the basics of the employment relationship. One of the cornerstones of that relationship is the employment contract.
     
  • 12/29/2005 - STRANGE TALES FROM THE EMPLOYMENT WORLD
    To end off the year I enjoy looking back at some of the weird, but true, occurrences in the world of employment. Here are some of the best of 2005.
     
  • 12/21/2005 - SUPREME COURT STRIKES BLOW FOR WHISTLEBLOWER PROTECTION
    The Supreme Court of Canada recently had its first opportunity to interpret a workplace whistleblower law. It took the opportunity to signal to the business community that it will give broad and liberal meaning to the protections contained in such statut
     
  • 12/12/2005 - UNIONS BRINGING PICKETING HOME TO MANAGEMENT
    Managers of unionized operations can usually rest assured picketing activities will occur at sites where union members actually perform work. Recently, however, there have been more frequent instances of union members picketing at managers’ homes.
     
  • 12/5/2005 - TECHNOLOGY VIOLATING WORKERS’ PRIVACY RIGHTS
    One of the tasks to which modern computerized technology can be put is the monitoring of employees’ work habits. One of the tasks of Canada’s privacy commissioners is to ensure such technology does not intrude on the privacy rights of those same employee
     
  • 11/28/2005 - ANNUAL REMINDER OF THE PERILS OF SERVING ALCOHOL TO EMPLOYEES
    Canadian judicial decisions have established the employer’s duty of care towards employees who consume alcohol at company events. The employer has a duty to take active steps to prevent injuries as a result of its employees’ alcohol consumption. In part
     
  • 11/21/2005 - EMPLOYERS DON’T HAVE TO PROVIDE REFERENCE LETTER
    In 2001, the British Columbia Court of Appeal ruled there is no obligation on an employer to provide a departing employee with a letter of reference. A recent decision by the B.C. Supreme Court confirms this is still the courts’ position.
     
  • 11/14/2005 - BENEFITS ADMINISTRATION CAN LEAD TO PUNITIVE DAMAGES
    Occasionally, in the employment world, an employer’s conduct is so reprehensible as to give rise to an award of punitive damages. One area in which this may occur is the employer’s administration of employee benefits plans.
     
  • 11/7/2005 - WORKPLACE SURVEILLANCE VIOLATING RIGHT TO PRIVACY
    One of the stormiest voyages on which any employer can embark is the introduction of video surveillance in the workplace. This is also one of the most challenging issues any human resources professional must face.
     
  • 10/31/2005 - PERFECTING THE OFFICE LOTTERY POOL
    The office lottery pool seems as Canadian as hockey, doughnuts, and Thanksgiving in October. As the folks at an A&W outlet discovered recently, it is also fraught with potential for legal squabbling.
     
  • 10/27/2005 - BCTF STRIKE PROVIDES BARGAINING LESSONS
    By the time this item is published, the illegal strike by B.C.’s teachers will be over and kids will be back in school. Looking back over the last three weeks, it’s hard not to concede at least a technical victory to the British Columbia Teachers Federat
     
  • 10/17/2005 - COURT IMPOSES UNEXPECTED SANCTIONS AGAINST TEACHERS UNION
    The recent order issued by the B.C. Supreme Court, in relation to the illegal teachers’ strike, seemed to catch everyone off guard. Rather than the substantial fines anticipated from the Court, Madam Justice Brown imposed sanctions aimed at paralyzing th
     
  • 10/11/2005 - UNION DECLARATIONS PERMITTED DURING LAWFUL WORK STOPPAGE
    Labour unions have a number of tactics at their disposal to pressure employers into toeing the line. One of these is known as a “declaration”, which is a public indication of the union’s displeasure and a call-to-action regarding an employer’s conduct.
     
  • 10/3/2005 - EMPLOYERS SHOULDN’T INTERFERE WITH FORMER EMPLOYEES’ INTERESTS
    In a 2001 decision, the Supreme Court of Canada issued its most important, recent ruling on the topic of just cause. The McKinley v. B.C.Tel decision indicated that non-union employers should be following the same sort of progressive discipline procedure
     
  • 9/26/2005 - COURTS ADDRESSING PROGRESSIVE DISCIPLINE ISSUES
    In a 2001 decision, the Supreme Court of Canada issued its most important, recent ruling on the topic of just cause. The McKinley v. B.C.Tel decision indicated that non-union employers should be following the same sort of progressive discipline procedure
     
  • 9/21/2005 - HOW MUCH NOTICE OF RESIGNATION IS SUFFICIENT?
    Like employers, employees must also give reasonable notice of their intention to terminate the employment relationship. Whether the notice obligation is set out in an employment contract or not, the employee faces legal consequences for abandoning employ
     
  • 9/21/2005 - L.R.B. LIMITS EMPLOYER COMMUNICATIONS
    The B.C. Labour Relations Code contains limits on an employer’s ability to communicate with its employees during a union organizing campaign. Historically, employers have been prevented from having any effective role in opposition to union organizing eff
     
  • 9/21/2005 - ACCOMMODATING GENDER ISSUES IN AMATEUR SPORTS
    A recent topic of debate was a female hockey player’s desire to have access to the boys’ change room before and after games. This raises issues relating to human rights and accommodation of individuals who are excluded (or otherwise disadvantaged) due to
     
  • 9/21/2005 - WHEN PRIVACY CLASHES WITH SECURITY
    Since the recent enactment of federal and provincial privacy legislation, employers’ use of employees’ personal information has come under unprecedented scrutiny. Fortunately, privacy commissioners seem to be taking a reasonable approach to such uses. O
     
  • 9/21/2005 - PUBLIC SERVANTS’ FREE SPEECH PROTECTED
    An issue often arising in the employment context is the extent of employees’ liberty to comment, publicly, on their employer’s affairs. This is a particularly complex matter when the employer happens to be a government body.
     
  • 9/19/2005 - PAYDAY LOAN COMPANY FACES CLASS ACTION
    Like employers, employees must also give reasonable notice of their intention to terminate the employment relationship. Whether the notice obligation is set out in an employment contract or not, the employee faces legal consequences for abandoning employ
     
  • 9/12/2005 - ACCOMMODATION IS A TWO WAY STREET
    The concept of accommodation of disabled employees is one which has become well entrenched in Canadian human rights law. A lesser known aspect of the duty to accommodate is the employee’s obligation to facilitate that process.
     
  • 9/6/2005 - CHANGES TO B.C.'s SMALL CLAIMS JURISDICTION
    The Small Claims Division of the B.C. Provincial Court is a forum in which the more modest wrongful dismissal claims can be pursued. As a result of newly implemented changes to that Court’s jurisdiction, it should become much more popular with terminated
     
  • 7/25/2005 - N.H.L. Teaches Players A Collective Bargaining Lesson
    Who do you think won the recent labour battle between the N.H.L. and the N.H.L.P.A.?
     
  • 7/18/2005 - Passage Of Time Is The Enemy Of Employment Contracts
    Am I still bound by an employment contract signed years ago at the outset of my employment?
     
  • 7/11/2005 - Fiduciary Duties Can Be Tough To Pinpoint
    Assuming that my employment places me in the position of a fiduciary, what are the limits on my activities after this employment ceases?
     
  • 7/4/2005 - Strange Tales From The Employment World
    My parents always say that nothing exciting ever happens at work – is this true?
     
  • 6/27/2005 - Jury Jumps On Bad Faith Bandwagon
    In what situations will a court award damages for bad faith firing?
     
  • 6/20/2005 - Employees Can Be Sued For Wrongful Resignation
    How much advance notice of resignation am I supposed to give and what happens if I don’t do that?
     
  • 6/13/2005 - Mandatory Retirement Suffers Another Blow
    What is happening in Ontario in relation to their move to ban mandatory retirement?
     
  • 6/6/2005 - Customer Loyalty Cards May Violate Privacy Rights
    How can I tell that my personal information isn’t being abused when I provide it to obtain a customer loyalty card?
     
  • 5/30/2005 - Purchaser And Vendor May Be Liable For Severance
    If my employment was terminated shortly after my employer’s business was sold, who is liable to pay me severance pay?
     
  • 5/23/2005 - Residential Employers May Need W.C.B. Coverage
    What are our obligations when hiring someone to work in and around our home?
     
  • 5/16/2005 - Enticement In Hiring Can Be Costly For Employers
    What are our obligations when terminating an employee whom we hired away from other employment?
     
  • 5/9/2005 - Employers Can Average Hours For Overtime Purposes
    Do we always have to pay overtime to employees who work more than the standard day?
     
  • 5/2/2005 - Employers Can't Ignore Chronic Fatigue Syndrome
    What do we do about employees who are continually absent due to complaints of fatigue?
     
  • 4/25/2005 - Planned Poisoning Amounts To Just Cause
    How can we know whether a single, serious instance of misconduct amounts to just cause for summary dismissal?
     
  • 4/18/2005 - Things To Negotiate When Moving To The U.S.A. For Employment
    What should I address in contract negotiations if I will be moving to the United States to work?
     
  • 4/11/2005 - Completing The Record Of Employment Accurately
    How should we complete the Record of Employment when we are terminating employment but not for cause?
     
  • 3/28/2005 - Get An Early Start On Hiring Foreign Agricultural Workers
    When should we commence our preparations to hire foreign agricultural workers for the harvesting season?
     
  • 3/21/2005 - When Is A Quit Not A Quit?
    Is there any specific test to determine if an employee has resigned from her employment?
     
  • 3/14/2005 - All Warnings Are Not Created Equal
    How should we formulate a written warning to an employee for disciplinary purposes?
     
  • 3/7/2005 - Privacy Rules Don't Make The Personnel File An Open Book
    How should we respond when an employee asks to see his entire personnel file?
     
  • 2/28/2005 - Special Payment Rules For Commissioned Sales People
    What limits does the B.C. Employment Standards Act impose on payment arrangements for commissioned sales persons?
     
  • 2/21/2005 - Leading By Example To Eliminate Workplace Harassment
    As the employer, what is our role in managing whether our employees discriminate against one another?
     
  • 2/14/2005 - Due Diligence Means Asking Many Questions
    What are some of the things we should address when acquiring a business and its employees?
     
  • 2/7/2005 - Workplace Safety Is A Partnership Between Employers And Employees
    What can happen to an employer which doesn't comply with its workplace safety obligations?
     
  • 1/31/2005 - Developing An Effective Employee Manual
    Can you offer any advice on developing an employee manual?
     
  • 1/24/2005 - Limited-Term Contracts Not Always Reliable
    Is there any reason why we shouldn't have our employees sign a new, one year, contract annually?
     
  • 1/17/2005 - Notice Of Termination Should Be Unequivocal
    Is there a prescribed formula for how we should phrase a notice of termination?
     
  • 1/10/2005 - Mitigation Can Mean Accepting Offer Of Relocation
    If my employer has offered me a transfer, as an alternative to termination of my employment, what are my obligations?
     
  • 1/3/2005 - Same-Sex Partners Entitled To Canada Pension Plan Benefits
    What is the state of the law in relation to same-sex partners' entitlement to C.P.P. survivor benefits?
     
  • 12/27/2004 - Proper Implementation Of Employment Contracts
    What should we be doing to ensure our employment contracts would be enforceable in court?
     
  • 12/20/2004 - Illegal Severance Clauses Of No Effect
    How do I know if the severance formula in my contract is legally enforceable?
     
  • 12/13/2004 - Employees Lay Claim To Pension Surpluses
    If my employer's pension plan has a surplus at the time it is wound up, who gets to share in that surplus?
     
  • 12/6/2004 - Establish A Policy On Serving Alcohol To Employees
    How can we protect ourselves against liability arising from employees leaving a staff event in an impaired state?
     
  • 11/29/2004 - Wish List For Independent Contractors
    What needs to be in place to ensure my contractors won't end up being deemed to be my employees?
     
  • 11/22/2004 - Keeping Federal And Provincial Employment Standards Straight
    What is the difference between the federal and provincial employment standards legislation?
     
  • 11/15/2004 - Beware Use Of American Employment Contracts
    What does it mean when my employment contract says that I am employed "at will"?
     
  • 11/8/2004 - Pension Loss Part Of Wrongful Dismissal Damages
    How can I recover a loss in pension value resulting from the termination of my employment?
     
  • 11/1/2004 - Employment Truths Of Purchasing A Business
    Do we need to worry about employee issues when planning to purchase an ongoing business?
     
  • 10/25/2004 - Change To Small Claims Jurisdiction Would Be Boon For Employees
    What options are there for pursuing a small scale wrongful dismissal claim?
     
  • 10/18/2004 - Some Managers Get A Form Of Overtime Pay
    Is it true that managers can qualify for overtime pay?
     
  • 10/11/2004 - All Employment Contracts Need These Clauses
    What are the most important topics to ensure are covered in an employment contract?
     
  • 10/4/2004 - E.I. Sickness Benefits Fill Disability Void
    If I don't have disability insurance, are there any other wage replacement benefits I can obtain during a medical leave?
     
  • 9/27/2004 - Criminal Code Protects Whistle Blowers
    Is there any protection for me if I report my employer for engaging in unlawful activities?
     
  • 9/20/2004 - Use The Proper Method For Offering Employment
    What is the best way to make an offer of employment?
     
  • 9/13/2004 - Ending Mandatory Retirement Poses Problems
    If mandatory retirement is abolished, what will be the rules for dealing with terminating older employees?
     
  • 8/30/2004 - Policies No Employer Should Be Without
    What policies should our employee handbook contain?
     
  • 8/30/2004 - Implementing Effective Probation Periods
    How should we define the probation period for our new employees?
     
  • 8/23/2004 - Unions Can Picket Ally Companies
    When can a striking union picket a business other than the struck employer?
     
  • 8/16/2004 - Keeping Seasonal Employees Seasonal
    If we hire the same employees season after season, are we acquiring any liabilities?
     
  • 8/9/2004 - Executives Need Protection From Employers
    As a senior executive, how can I protect myself from being the subject of retrospective misconduct claims?
     
  • 8/2/2004 - Courts Expanding On Just Cause Standard
    What does the concept of progressive discipline mean in practice?
     
  • 7/26/2004 - Spouse’s Activities Of Interest To Employer
    If asked, do I have to tell my employer what my spouse does for a living?
     
  • 7/19/2004 - Fast Track To Importing Agricultural Workers
    What can we do to alleviate the shortage of local labour for harvesting of farm produce?
     
  • 7/12/2004 - Variations On The Non-Competition Agreement
    What are the different ways we can protect ourselves, contractually, against damage caused by former employees?
     
  • 7/5/2004 - Group Termination Places Heavy Burden On Employers
    How much notice of termination do we have to give for a permanent plant shutdown?
     
  • 6/28/2004 - Accommodation Standard Tough To Meet
    How do we establish that we have properly accommodated an employee?
     
  • 6/21/2004 - Minimum Pay For Employees Sent Home From Work
    How much do we have to pay an employee whose shift is halted for reasons beyond our control?
     
  • 6/14/2004 - Employment Of Resident Caretakers Requires Broad Expertise
    Is the Employment Standards Act the only statute in B.C. governing the employment relationship?
     
  • 6/7/2004 - Another Twist In Employer Host Liability
    Have there been any recent developments in the law relating to employers serving alcohol to employees?
     
  • 5/31/2004 - Some Employers Require Employees To Be Bondable
    What does it mean when a prospective employer asks me if I am bondable?
     
  • 5/24/2004 - Companies And Employees May Face Criminal Charges
    Can a company or its employees be charged criminally for conduct relating to the operation of a business?
     
  • 5/17/2004 - Automatic Certifications A Thing Of The Past
    Can our employees obtain union certification without the necessity of a secret ballot vote?
     
  • 5/10/2004 - Employers Must Meet Statutory Leave Obligations
    Can we terminate the employment of an employee who has gone on a statutory leave?
     
  • 5/3/2004 - Application Forms Are Useful Screening Tool
    How can we improve our ability to screen out undesirable job applicants?
     
  • 4/19/2004 - Wrongfully Dismissed Employees Must Mitigate Losses
    If I’ve been fired from my job and am claiming damages for wrongful dismissal, do I have to find another job?
     
  • 4/12/2004 - Employment Standards Meal Breaks Can Be Confusing
    How should we deal with a situation where we require an employee to work through a meal break?
     
  • 4/5/2004 - Some Resigning Employees Get E.I. Benefits
    If I’ve resigned am I automatically disqualified from collecting employment insurance benefits?
     
  • 3/29/2004 - Dismissal Requires Planning And Compassion
    How do we avoid claims of bad faith when dismissing employees?
     
  • 3/22/2004 - Employers Must Change Hiring Habits
    How does the new privacy legislation affect how we deal with our employees?
     
  • 3/15/2004 - Changes To Occupational Health And Safety Regulation
    How are we to know what first aid procedures must be implemented in our workplace?
     
  • 3/8/2004 - Incompetence As Just Cause Difficult Standard To Meet
    Can we terminate an employee for just cause based on incompetent performance of work duties?
     
  • 3/1/2004 - Employment Standards Allows Unions Greater Flexibility
    What happens if our collective agreement provides different entitlements than those in the Employment Standards Act?
     
  • 2/23/2004 - Special Rules Apply To Young Workers
    Are there any extra precautions we must take when hiring younger employees?
     
  • 2/16/2004 - No Such Thing As Near Cause For Summary Dismissal
    Can an employee’s poor conduct be taken into account in determining his severance entitlement?
     
  • 2/9/2004 - Length Of Service Key Factor In Determining Severance
    What is the impact, on an employee’s severance entitlement, of having two periods of service?
     
  • 2/3/2004 - Imposing Post-Employment Restrictions On Competition
    How do we go about imposing a restrictive covenant on our employees?
     
  • 1/26/2004 - Compassionate Care Leave Not Provided In B.C.
    Am I able to take what is referred to as compassionate care leave?
     
  • 1/12/2004 - Four Steps To Compliance With Privacy Legislation
    What are our main tasks in achieving compliance with B.C.’s new privacy legislation?
     
  • 1/5/2004 - Employee Associations Offer Local Control
    Are employees able to form their own representative association rather than joining an established trade union?
     
  • 12/24/2003 - Supreme Court Rules On Dismissal Of Incarcerated Employees
    Is it permissible to terminate the employment of an employee who is spending time in jail?
     
  • 12/22/2003 - Employers Can Impose Contract Terms On Union Employees
    Is it true that an employer can impose new employment terms on union members after they’ve been on strike?
     
  • 12/15/2003 - The Dos And Don’ts Of Serving Alcohol To Employees
    What can we do to minimize the risk of injury and liability when alcohol is served at staff parties?
     
  • 12/8/2003 - Few Payroll Deductions Are Permissible
    Can we recover a debt from an employee by deducting the amount from his pay?
     
  • 12/1/2003 - Non-Employees May Be Entitled To Reasonable Notice
    Is the entitlement to working notice exclusive to employees?
     
  • 11/24/2003 - Poor Attendance May Be Cause For Dismissal
    Can we rid ourselves of employees who have poor attendance?
     
  • 11/17/2003 - Legislation Now Protects Employees’ Personal Information
    What is the status of the B.C. legislation protecting our employees’ personal information?
     
  • 11/10/2003 - Don’t Ignore Nuances Of Dealing With Seasonal Employees
    Are there special employment rules for seasonal employees?
     
  • 11/3/2003 - It Pays To Understand Canada’s Public Pensions
    What are my public pension entitlements upon retirement?
     
  • 10/27/2003 - Hiring Foreign Caregivers Requires Careful Attention
    Are we restricted in our ability to hire a foreign, live-in, caregiver?
     
  • 10/20/2003 - Employment Rules Differ By Jurisdiction
    How do we know which employment statutes govern our employees?
     
  • 10/13/2003 - E.I. Rules Differ For Employees Related To The Employer
    Do we have to make E.I. deductions from the pay of employees who are our relatives?
     
  • 10/6/2003 - Employers Should Properly Implement Policies
    How should we go about implementing new employment policies?
     
  • 9/29/2003 - Employers Liable For Negligent Pre-Hiring Representations
    What remedies are available to me if the job I was promised, and was hired for, never materialized?
     
  • 9/22/2003 - Avoid The Pitfalls Of Terminating Employee Benefits
    When an employee is dismissed, how should we handle the issue of benefits coverage?
     
  • 9/15/2003 - Even New Employers Have Statutory Obligations
    As an operator of a new business, what statutory reporting obligations do I have in relation to my employees?
     
  • 9/8/2003 - Employer May Be Liable For Employees’ Misconduct
    Under what circumstances might our business be liable to a third party for the actions of our employees?
     
  • 9/2/2003 - Natural Disaster May Frustrate Employment Contract
    Are we obligated to provide our employees with notice of termination if our business closes because of a natural disaster?
     
  • 8/25/2003 - British Columbia’s Human Rights Regime Still Exists
    How that the Human Rights Commission has been eliminated, how are human rights protected in B.C.?
     
  • 8/18/2003 - Moonlighting May Lead To Disciplinary Measures
    Does my employer have a say in whether I have a second job or run an outside business?
     
  • 8/11/2003 - Union Decertification A Popular Option
    How do we go about ridding ourselves of union representation?
     
  • 8/4/2003 - ESA Definition Of Manager Has Been Expanded
    Why is the term “manager” important under the Employment Standards Act?
     
  • 7/28/2003 - Lower Minimum Wage Rate For Entry Level Jobs
    How does B.C.’s new entry level wage rate work?
     
  • 7/21/2003 - Unions Must Represent Members Fairly
    What can I do when my union is not properly representing my interests?
     
  • 7/14/2003 - Get Employees’ Consent For Work References
    Could we be exposed to liability by responding to requests for employment references?
     
  • 7/7/2003 - Ownership Of Inventions Not An Intuitive Concept
    Who owns inventions created in the workplace?
     
  • 6/30/2003 - Workplace Harassment Calls For Pro-Active Measures
    How should we prepare our business to deal with instances of workplace harassment?
     
  • 6/23/2003 - Just Cause Standard Getting Tougher
    How do we determine if we have just cause to fire an employee?
     
  • 6/16/2003 - Religious Objectors Don’t Pay Union Dues
    Do I have to pay union dues if I object, on religious grounds, to union membership?
     
  • 6/9/2003 - Common Law Impacts Employees On Sale Of Business
    What happens to my employment if my employer’s business is sold?
     
  • 6/2/2003 - Employers Inherit Employees With Purchased Business
    What happens to my employment if my employer’s business is sold?
     
  • 5/26/2003 - Employers Pay For Bad Faith Dismissals
    What can I do if I was dismissed because my manager held a grudge against me?
     
  • 5/19/2003 - Employers Must Control Overtime Work
    How can we limit our obligation to pay our employees at overtime rates?
     
  • 5/12/2003 - Employees’ Personal Information Must Be Protected
    What is our responsibility to protect our employees’ personal information?
     
  • 5/5/2003 - Unpaid Layoff Can Be Constructive Dismissal
    Am I able to temporarily lay off an employee without pay?
     
  • 4/28/2003 - Severance Requires Consideration Of Many Factors
    How do we determine how much severance to pay when dismissing an employee?
     
  • 4/21/2003 - Beware Of Serving Alcohol To Employees
    What is our responsibility when serving alcohol to employees at company events?
     
  • 4/14/2003 - Avoiding Post-Employment Competition Disputes
    Am I free to compete against my former employer for business?
     
  • 4/7/2003 - Independent Contractors Can Open A Can Of Worms
    Am I free to hire staff as independent contractors rather than as employees?
     
  • 3/31/2003 - No Such Thing As Implied Probation Periods
    Are my employees automatically subject to a probation period?
     
  • 3/24/2003 - Mandatory Retirement Widely Misunderstood
    Can my employer force me to retire at age 65?
     
  • 3/17/2003 - Employment Contracts are Good Insurance
    Should I have my employees sign written employment contracts?
     
  • 3/10/2003 - Constructive Dismissal Requires Careful Thought
    Can my employer reduce my salary without my consent?
     
  • 3/3/2003 - Exaggerating Qualifications
    Could I get into trouble for exaggerating my qualifications to a potential employer?
     

• Labour Pains  
  Robert Smithson's bi-monthly column, ''Labour Pains'', appears in Kelowna's Okanagan Business Journal. In this column, Robert addresses ''big picture'' labour and employment issues which will be primarily of interest to employers.
   
  • 7/6/2005 - Making Arbitration, And Arbitrators, Work For You
    Almost all union collective agreements contain an arbitration provision. Many non-union workplaces are also implementing dispute resolution processes utilising private arbitrators. There are, however, problems with the arbitration system.
     
  • 5/4/2005 - Employers Have Some Control Over Public Statements By Employees
    Recent news reports in B.C. have covered a brewing battle between our provincial government and medical workers. That's really not surprising, of course, because there always seems to be a point of contention between those two camps.
     
  • 1/3/2005 - Pro Hockey Provides Collective Bargaining Tips
    The ongoing N.H.L. lockout is one which we Canadians all seem to be watching closely. The fact that significant developments are occurring less frequently than a natural hat trick helps us, of course, to keep track of all the action.
     
  • 6/28/2004 - Probation Period Is An Effective Screening Tool
    Perhaps the best weapon in an employer’s arsenal to screen applicants is the probation period. In my experience, it is also one of the least used and least understood.
     
  • 3/15/2004 - The Failure of the Duty to Accommodate Test
    Recent human rights decisions involving the employer's duty to accommodate disabled employees demonstrate the failings of the "duty to accommodate" test. Robert Smithson calls for a re-formulation of the test which better balances the rights of disabled
     
  • 11/13/2003 - Unions Can’t Be Trusted To Act Business-Like
    The recent actions by the Industrial, Wood and Allied Workers (IWA) prove, once again, that unions cannot be trusted to do business in a business-like fashion.
     
  • 9/15/2003 - Regulation of Employment Relationships
    Employers increasingly squeezed by government and courts.
     
  • 7/14/2003 - Workplace Violence
    Workplace violence not solved with legislation, policies alone.
     
  • 5/16/2003 - Courts versus Arbitrators
    Knowing where to go with union-related disputes.
     

• Other Publications  
  Miscellaneous Publications by Robert Smithson, and other members of the Labour & Employment team.
   
  • 3/31/2005 - Kemosabe Is No Friend To Nova Scotia's Native Peoples
    Employers must exercise caution when using racially sensitive labels.
     

• LabourBlast  
  LabourBlast is a review of legal decisions and how the outcome may directly affect you.
   
  • 6/20/2006 - Can Employers Summarily Dismiss Employees Charged, But Not Convicted, With A Criminal Offence?
    A recent Ontario decision considered the case of an employee charged with possession of child pornography. The employer quickly dismissed the employee for just cause and, in response, the employee sued for wrongful dismissal. The Court upheld the employer''s just cause defence. It concluded that, notwithstanding the fact that the employee had not yet been convicted, the nature of the employee''s conduct provided the employer with just cause for summary dismissal.