Archive for the ‘Employment Law’ Category

You’re Fired (And By The Way You Can’t Compete With Me)

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Categories: Blog, Employment Law
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 [...]

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Alcohol And Your Obligations As An Employer

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Categories: Blog, Employment Law
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.

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I Have A Simple Question

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

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Giving Notice To Employees On Leave

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Categories: Blog, Employment Law
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.

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Five Important Reasons For Employment Contracts

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

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Let’s Talk – Our Labour and Employment Group

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Categories: Blog, Employment Law
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.

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Constructive Dismissal

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Categories: Blog, Employment Law
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 [...]

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Apple CEO Jobs’ 2010 Compensation Remains $1

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Categories: Blog, Employment Law
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 […]

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Old, Old, Old Claims For Vacation Pay

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

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Notice Obligations To Employees On Leave

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

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Notice Obligations To Employees On Leave

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

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The Latest On Damages For Mental Suffering

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

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Employment Law – The Dangers Of Guessing

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

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Employment Law Update – Damages For Mental Distress

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

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Wrongful Dismissal Damages for Career Setback

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

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E.I. Changes Blurring Line Between Employees and Contractors

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Categories: Blog, Employment Law
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

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No Free Lunch – A Grant Thornton Whitepaper

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Categories: Blog, Employment Law, Tax
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 […]

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Are Humans The Weak Link?

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Categories: Blog, Employment Law
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 […]

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Proper Investigation Necessary To Support Just Cause

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Categories: Blog, Employment Law
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 […]

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Personal Information and your Business

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Categories: Blog, Employment Law
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.

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Employee’s General Knowledge Is Their Own To Exploit

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Categories: Blog, Employment Law
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. 

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Bona Fide Occupational Requirements And Older Workers

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Categories: Blog, Employment Law
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 [...]

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Avoiding the Pitfalls of Enticement

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Categories: Employment Law
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 […]

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Labour Consultants Lack Privilege in Some Circumstances

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Categories: Blog, Employment Law
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 […]

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Is Cyber-Sacking the Way of the Future?

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Categories: Blog, Employment Law
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 […]

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Religious Objections to Union Membership

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Categories: Blog, Employment Law
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 […]

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Bona Fide Occupational Requirements and Older Workers

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Categories: Blog, Employment Law
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 […]

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Vacation Pay on Severance Pay

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Categories: Blog, Employment Law
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 […]

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Managing Employees’ Personal Activities During Working Hours

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Categories: Blog, Employment Law
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 […]

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Employee Not Responsible for “Dine and Dash” Customer

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Categories: Blog, Employment Law
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 […]

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Employers Must Accommodate All Religious Beliefs

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Categories: Blog, Employment Law
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 […]

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Is B.C. Ferries Contract the Wave of the Future?

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Categories: Blog, Employment Law
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 […]

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Has the B.C. Human Rights Tribunal Come of Age?

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Categories: Blog, Employment Law
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 […]

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Offer Consideration for Contract Changes

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Categories: Blog, Employment Law
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 […]

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Egregious Conduct is Grounds for Summary Dismissal

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Categories: Blog, Employment Law
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 […]

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Termination of Employment Tiggers Benefits Liabilities

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Categories: Blog, Employment Law
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 […]

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High Tech Employers Can Avoid Overtime Rules

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Categories: Blog, Employment Law
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 […]

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Unions Can’t Blackball Members Refusing To Participate In Illegal Strike

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Categories: Blog, Employment Law
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” […]

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Employers Paying For Harassment

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Categories: Blog, Employment Law
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 […]

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Employers Addressing Employee Blogging

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Categories: Blog, Employment Law
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 […]

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B.C. Introduces Compassionate Care Leave

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Categories: Blog, Employment Law
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 benefits for compassionate care leave. The proposed amendments provide for up to 8 weeks of unpaid leave to provide care or support […]

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Union Bringing Picketing Home to Management

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Categories: Blog, Employment Law
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. A recent instance resulted in the employer going to court to obtain an injunction to block the picketing. It involved […]

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How Much Notice of Resignation is Sufficient?

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Categories: Blog, Employment Law
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 employment without giving notice. In some provinces, employment legislation dictates the notice requirement for resigning employees. B.C.’s Employment Standards […]

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Employers Can Average Hours for Overtime Purposes

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Categories: Blog, Employment Law
One of the more recent additions to the B.C. Employment Standards Act is the overtime averaging provision. This allows employers to average the hours of their employees to determine whether wages at overtime rates must be paid. The overtime averaging provisions allow employers to schedule employees to work non-standard shifts without having to pay at […]

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Completing the Record of Employment Accurately

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Categories: Blog, Employment Law
I am frequently asked what the R.O.E. should say if the employment has been terminated but the employer is not relying on just cause reasons. This is very often the case when the employee simply doesn’t prove to be a good fit within the organization. It is important to make sure the R.O.E. accurately indicates […]

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Special Rules for Commissioned Sales People

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Categories: Blog, Employment Law
The B.C. Employment Standards Act imposes a number of restrictions on compensation structures for commissioned sales people. Understanding them is no simple task and concentrated study of the rules is highly recommended to employers of commissioned employees. The first thing to know is that the Act distinguishes between two categories of commissioned sales people. So-called […]

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Establish a Policy on Serving Alcohol to Employees

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Categories: Blog, Employment Law
During the holiday season, questions tend to arise regarding liability flowing from serving alcohol at staff functions. The simplest and most effective way of avoiding liability is, of course, to stop serving alcohol at company events. Many companies have already adopted this approach and the world has yet to come to an end as a […]

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Beware Use of American Employment Contracts

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Categories: Blog, Employment Law
I occasionally come across employment contracts, relating to Canadian employees, which originate with an American employer. One clear sign that this is the case is any sort of reference to “at will” employment. The concept of “at will” employment is inapplicable in the Canadian legal context. Employment which is “at will” means that the employer […]

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Pension Loss Part of Wrongful Dismissal Damages

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Categories: Blog, Employment Law
As Canadas population ages, more and more workers are approaching the age of retirement (or, in many cases, early retirement). Because of this trend, many employees have valid concerns about the impact of a termination of employment on their pension entitlement. Their fears are well-founded as an untimely termination of employment can have a drastic […]

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E.I. Sickness Benefits Fill Disability Void

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Categories: Blog, Employment Law
Many employees participate in employment-related disability insurance plans. Not all employers, however, offer this coverage. And, as disability premiums become progressively more expensive, I expect fewer employers will make this a part of their standard compensation package. In the case of medical leaves which are not the result of a workplace injury, sickness benefits are […]

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Employment of Resident Caretakers Requires Broad Expertise

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Categories: Blog, Employment Law
It would be fair to say that regulation of the employment relationship is far more extensive today than, say, twenty years ago. In most instances, employers must look beyond the B.C. Employment Standards Act. The common law of employment expands and evolves with new court decisions every day. There is also a multitude of statutes […]

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Length of Service Key Factor in Determining Severance

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Categories: Blog, Employment Law
The Canadian common law of employment establishes most employees’ entitlement to reasonable 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). There are, however, some exceptions to this rule. For instance, employees have no entitlement to working notice […]

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Supreme Court Rules on Dismissal of Incarcerated Employees

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Categories: Blog, Employment Law
Employers often struggle with the question of what to do about employees who have received a jail sentence. Since the development of modern human rights statutes, dismissing an incarcerated employee has raised issues of discrimination. That is because human rights statutes generally contain protection against differential treatment based on the employee’s record of convictions. That […]

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Employers Can Impose Contract Terms on Union Employees

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Categories: Blog, Employment Law
A recent bargaining dispute involving B.C.’s unionized coastal forest companies highlighted the issue of whether an employer can ever unilaterally impose new contract terms. Because of that recent battle, more employers and union members are pondering this question. The answer requires some close analysis of how collective agreements operate and of the impact of legal […]

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Don’t Ignore Nuances of Dealing With Seasonal Employees

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Categories: Blog, Employment Law
A seasonal workforce is very common in economies which are dependent upon naturally occurring commodities. In B.C. seasonal employees make up much of the workforce in (for instance) farming, forestry, orchards, and fishing. Dealing with these employees in a legally appropriate manner requires knowledge of some specialized employment rules. Employers sometimes assume that employment laws […]

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Union Decertification a Popular Option

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Categories: Blog, Employment Law
Just as employees can choose to have a union act as their exclusive bargaining agent, they can also choose to get rid of it. The B.C. Labour Relations Code contains the rules governing decertification for bargaining units within the provincial jurisdiction. Decertification applications are quite common in British Columbia. The Labour Relations Board receives well […]

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Religious Objectors Don’t Pay Union Dues

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Categories: Blog, Employment Law
A little known (and rarely utilized) provision in the B.C. Labour Relations Code exempts certain individuals from union membership and the payment of dues. The exempt category is limited to persons who, because of their religious beliefs, object generally to joining trade unions or to paying union dues. The Labour Relations Board may order that […]

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Employers Must Control Overtime Work

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Categories: Blog, Employment Law
Under employment standards legislation, the employer has the burden of controlling its employees’ performance of overtime work. If the employer allows its employees to perform overtime work, even without express permission, it must pay them at the prescribed rates. There are a number of ways for employers to control their employee’s performance of work beyond […]

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