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British Columbia Employer Advisor

Keeping Employers Posted on Developments in Labour and Employment Law

Illegal Toker or Legitimate Smoker? Marijuana-Smoking Employee Lawfully Dismissed

Posted in Accommodation, Human Rights
Kirsten Hume

Given the increasing availability and use of medical marijuana in British Columbia, employers are often faced balancing the need to ensure a safe workplace and an employee’s right to legitimate medical treatment. A recent decision of the BC Human Rights Tribunal gives employers some welcome clarity on the limits of the duty to accommodate, the nature of bona fide occupational requirements (“BFORs”), and the legality of “zero tolerance policies” regarding drug use on the job.

In French v. Selkin Logging, the Tribunal dismissed a complaint brought by Mr. French, a heavy equipment operator for a logging company.  Mr. French alleged that his employer discriminated against him on the basis of disability by, among other things, not permitting him to smoke marijuana for pain management on the job.

Mr. French was treated for cancer in 2009 and returned to work in 2010.  It was widely known, including by his supervisor, that Mr. French was smoking marijuana on the job.  He and another employee shared six to eight joints a day during coffee and lunch breaks.

Mr. French’s supervisor only confronted him about his smoking after months of complaints from other employees and, more particularly, after Mr. French and a co-worker struck a moose with a workplace truck.  Marijuana was later found in the vehicle.  The supervisor told him that the company had a zero tolerance policy for drug use on the job; Mr. French later received a letter stating that his employment would be terminated unless he agreed to return to work “drug free”.

Mr. French asserted that he needed to smoke pot to manage his pain and that his physicians directed him to do so, as his cancer had recurred.  However, on probing this issue further, the Tribunal found that: he did not have a prescription; his doctors had not told him to smoke marijuana, and that there was no evidence that any doctor had condoned his smoking at work.  While the Tribunal could not determine whether the marijuana was “medical grade”, there was also no evidence that Mr. French was impaired on the job.

The Tribunal accepted that Mr. French was disabled, that he used marijuana for pain management, and had been terminated for using marijuana.

However, the Tribunal also found that the employer’s zero tolerance policy was a BFOR, even though it exceeded the minimum standard under occupational safety laws (which focus on impairment and endangerment at the workplace, rather than setting a zero tolerance rule).

First, the zero tolerance policy was created for safety reasons and properly linked to the performance of Mr. French’s job.  Second, it was adopted in the honest belief that it was necessary.  Third, it was reasonably necessary: the employer could not accommodate Mr. French’s smoking without undue hardship.

Because Mr. French’s marijuana use was not authorized, and thus illegal, it could not be treated like other medications.  Although there was no evidence that Mr. French was impaired or posed any danger, that did not mean the zero tolerance policy was unreasonable or unnecessary.  The employer’s delay in enforcing the policy did not preclude it from enforcing it later.  Further, Mr. French had not informed his employer of his need to smoke or otherwise facilitated the accommodation process.

In the circumstances, the requirement for reasonable accommodation did not require the employer to abet Mr. French’s smoking marijuana at work.

Key takeaways

The French decision highlighted several important points for employers:

  1. It may be within employers’ legitimate management rights to impose a general rule prohibiting the consumption of drugs or alcohol at the workplace, especially where workplace safety is of particular concern. On the other hand, policies that rely on strict application of a zero tolerance rule, without considering accommodation in individual circumstances, may offend the Code if, for example, an employee is legitimately using marijuana for medical purposes.
  2. A zero tolerance policy should not be found unreasonable simply because an employee has not shown signs of impairment or inability to work safely.
  3. Where an employee is using drugs such as marijuana on the job without proper authorization, or without disclosure to the employer, a court or tribunal may be less likely to find an employer’s refusal to permit such drug usage to contravene the Code.
  4. An employer’s delay in enforcing a drug policy will not necessarily preclude later enforcement (although it is preferable to administer policies promptly and consistently).
  5. The duty to accommodate is subject to reasonable limits, and does not rest solely on the employer. Employees must facilitate accommodation, and their failure to do so may result in their complaints being dismissed.

New Human Rights and Privacy Protections For ‘Genetic Test Results’ Introduced

Posted in Discrimination, Human Rights, Legislative Changes, Privacy
Donovan Plomp

Federally-regulated employers may soon be seeing changes to privacy and human rights laws in relation to genetic information. On June 9, 2015, the federal Minister of Justice introduced Bill C-68, otherwise known as the Protection Against Genetic Discrimination Act. The bill is aimed at better protecting persons’ genetic information in Canada. The latest version of the bill can be found here.

Bill C-68 will clarify the law relating to the use, collection, and disclosure of genetic information by amending three pieces of federal legislation: the Canadian Human Rights Act, the Personal Information Protection and Electronic Document Act (PIPEDA) and the Privacy Act. The bill proposes an amendment to the Canadian Human Rights Act that will prohibit discrimination based on genetic test results. In addition, it clarifies that genetic testing information qualifies as “personal information” protected by the Privacy Act and PIPEDA.

Further discussion of the proposed changes and their effects on the legislation identified above can be found in the government’s press release here.

If and when Bill C-68 becomes law, the contemplated amendments to the legislation noted above will have the effect of expanding federal employers’ responsibility and potential liability when collecting, using and disclosing genetic information – from candidates for employment, to employees, to the customers and clients they serve.

While Bill C-68 itself may die on the table with the anticipated federal election this fall, further revision to federal government policies and consultation with provincial and territorial governments and industry to encourage similar changes in those jurisdictions is also expected. We will be sure to keep you updated on developments.


SCC Grants Leave to Appeal on Canada Labour Code Without Cause Dismissal

Posted in Litigation, Termination, Wrongful Dismissal
Kirsten Hume

Our colleagues in Ontario recently posted here on the case of Wilson v. Atomic Energy of Canada Limited,where the Federal Court of Appeal held that non-unionized employees in the federal sector do not have a “right to a job” and that dismissal from employment on a without cause basis is not automatically an “unjust dismissal” under the Canada Labour Code. This was a welcome clarification in the law for federal employers, who had previously been faced with a line of authority from adjudicators which limited without-cause dismissals to very narrow circumstances.

The Supreme Court of Canada has granted the dismissed worker leave to appeal the decision, meaning that employers will soon see a definitive ruling on this issue. We will be sure to keep you updated on the outcome.


New Investigation Requirements, On-The-Spot Financial Penalties and Work-Stop Orders In Wake Of Babine and Lakeland Sawmill Disasters

Posted in Investigations, Legislative Changes, Occupational Health and Safety, Workers Compensation, WorkSafeBC
Christopher McHardyWill Skinner

Before the Babine and Lakeland sawmill disasters in 2012, employers were already under an obligation to investigate any workplace incident involving serious injury or death, major structural failure or collapse, major release of a hazardous substance, a blasting accident that caused personal injury, a dangerous incident involving explosive, a diving accident, any accident or other incident that resulted in injury to a worker requiring medical treatment, and any near misses.

Now, as a result of amendments to the Workers’ Compensation Act (WCA), following Royal Assent to Bill C-9 on May 14, 2015, the manner in which employers carry out such investigations has been regulated as a mandatory two-phase process. Employers must now complete a preliminary investigation within the first 48 hours of the incident and a full investigation within 30 days.  In addition, on-the-spot financial penalties may be assessed against employers for certain violations of the WCA and the threshold and obligations regarding work-stop orders has been expanded.  A summary of the legislative changes pursuant to Bill C-9 can be found here.

On May 27, 2015, WorkSafeBC’s Board of Directors approved interim policies to govern employers’ compliance with the new investigation requirements under the amended WCA.  Details regarding the policy requirements for the preliminary investigation can be found here, and for the full investigation here.  A summary of the changes under the WCA and the operation of the interim policies can be found here.

WorkSafeBC is also seeking stakeholder input regarding its discussion paper and proposed changes to work-stop orders under the WCA.  As stated in the discussion paper,

Changes to the [WCA], effective May 14, 2015, expand the criteria and lower the threshold for issuing stop work orders. The changes also allow WorkSafeBC to stop work or prevent working from starting at multiple locations for an employer (“stop operations”) where similar unsafe conditions are likely to exist at the other locations.

Employers are encouraged to review the discussion paper and proposed changes and to weigh in with comments, here.

The British Columbia Employers’ Advisers Office expects to have final policies regarding employers’ investigation obligations in place by the end of December 2015. We will keep you posted on new developments.

Further Guidance From the Privacy Commissioner

Posted in Best Practices, Privacy
Ryley Mennie

Following our post, here, regarding the outcome of the investigation conducted by the Office of the Information and Privacy Commissioner (“OIPC”) into the District of Saanich spyware complaint, the OIPC has published guidelines for B.C. employers to follow when implementing IT protections to ensure privacy legislation is complied with, found here. In conjunction with the best practices identified in our post, the OIPC’s guidelines are a useful reference that can help employers protect their businesses and avoid privacy complaints.  It is worth noting that the OIPC’s guidelines are guidelines only and do not have the effect of law. That said, the OIPC has based these guidelines on its interpretation of privacy legislation and they are worth reviewing.

Lessons From The Saanich Spyware Fiasco And New Privacy Laws To Be Aware Of

Posted in Best Practices, Employee Obligations, Intellectual Property, Investigations, Privacy
Ryley MennieWill Skinner

In our current information age, security over electronic information and protection against unauthorized access is foundational to employers’ businesses. To guard against endlessly multiplying electronic threats, employers must resort to electronic means and, understandably, often resort to broad and comprehensive software to protect their operations. However, the situation involving the District of Saanich earlier this year is a good reminder to all B.C. employers that cyber-protection cannot be used at the expense of employees’ privacy. Moreover, recent amendments to the federal Personal Information Protection and Electronic Documents Act (PIPEDA), which our colleagues posted on here, now make privacy law compliance of even higher importance in the federal sphere, by imposing higher standards and more serious consequences.

In the District of Saanich,  shortly after Mayor Richard Atwell was sworn in, he was shocked to discover that the District’s IT department had installed spyware on its staff computers (including his), which recorded employees’ emails, instant messages, programs accessed and web history. Most shockingly, the software saved a screen shot of the user’s computer every 30 seconds, and recorded every keystroke that employees made. The District claimed that the software was only intended as a security measure for protecting its computer systems from cyber-threats.

Following the news of the District’s use of the software, B.C.’s Office of the Information and Privacy Commissioner (OIPC) conducted an investigation.  On March 30, 2015, the OIPC released its investigation report, condemning the District’s use of the software. B.C.’s Privacy Commissioner, Elizabeth Denham, found that many of the functions of the software were unnecessary for maintaining system security and that the administration seemed completely unaware of the Freedom of Information and Protection of Privacy Act in its implementation of the program. The screenshot and keystroke records in particular contained personal information, which the District had no statutory authority to collect. The Commissioner recommended that the District remove the software and delete all of the information that the software had recorded.  The District fully complied.

Given that employers generally do not intend to violate their employees’ privacy when they implement software to protect their businesses, the Saanich case is an important reminder to keep privacy legislation top of mind when adopting cyber-protections. Since almost all employees use work computers for incidental personal purposes, information gained through monitoring employees’ workstations could “range from the mundane such as vacation planning through to the highly sensitive such as viewing medical laboratory results.”  Though programs like the one used by Saanich might be appealing in their comprehensiveness, they may err on the side of privacy violations when engaged to protect an employer’s business.

To help employers comply with privacy legislation, we have drafted these best practices when considering tools or software that may have an effect on an employee’s privacy rights:

  1. Determine which privacy statutes apply to your organization: FIPPA for public sector employers, PIPA for private sector employers, and PIPEDA for employers who are federally regulated.
  2. Appoint a “privacy officer” tasked with ensuring that your business complies with the relevant privacy statute.
  3. Notify the employees of any collection, use or disclosure of their personal information.
  4. Identify the purpose for which the information will be used, collected and disclosed and ensure that the overall purpose for collecting the information is reasonable.
  5. Make sure that the type of information being collected is necessary for fulfilling the purpose of its collection.
  6. Obtain the employees’ consent – either deemed, express or opt out.
  7. Train employees about their responsibilities under your business’ privacy policies and the obligations under applicable privacy legislation.
  8. Make a log of every time an administrator accesses or uses an employee’s personal information, including when and why this was done.
  9. Audit all personal information already in your possession, ensuring that it was legally collected, that it remains securely stored, and that the purpose it was collected for remains relevant and appropriate.

Though these practices will not address every circumstance in which employers need to walk the line between cyber-protection and employee privacy, paying heed to them will help to ensure your business is able to adequately protect its electronic systems without requiring employees to “check their privacy rights at the office door.”

Context is Key: New Trial for Dismissed CIBC Employee

Posted in Discipline, Employee Obligations, Investigations, Litigation, Termination
Ryley Mennie

Previously, we posted here on the case of the CIBC employee who had been dismissed for using her personal account to complete a wire transfer for a client in Ogden v CIBC. The initial trial decided only that Ms. Ogden had been wrongfully dismissed and the heads of damages. The trial judge found that CIBC had conducted a flawed investigation of Ms. Ogden’s conduct and there was a lack of clarity, training and consistency in its policies and procedures.

In a decision handed down April 27, 2015, the BC Court of Appeal ordered a new trial. In particular, the court found that the trial judge had misapprehended the evidence and CIBC’s legal arguments, such that the trial judge’s overall conclusion could not stand.

The trial judge had adopted some 482 paragraphs, “almost word for word” from Ms. Ogden’s closing submissions as part of his 497 paragraph judgment. In light its conclusions on substantive issues with the trial judge’s decision, the court of appeal did not have to decide whether this had given rise to any procedural unfairness in the hearing.

However, with respect to substantive issues, the court found that the trial judge had misunderstood CIBC’s argument on just cause. The trial judge understood CIBC to have made an argument for cumulative cause, in that “two or more wrongs are worse than one”. In part, he found that CIBC could not succeed on this argument because Ms. Ogden had been given a final warning for other misconduct only after she had committed the wire transfer misconduct – CIBC could not consider this in breach of the final warning if Ms. Ogden did it before being warned.

This was a fundamental error. CIBC did not argue cumulative cause, but rather, relying on the Supreme Court of Canada’s decision in McKinley v BC Tel, argued that the context in which Ms. Ogden committed the wire transfer misconduct – in which she had been previously warned and counselled about how seriously CIBC takes even slight violations of its policies – made the wire transfer incident that much more severe.

The court of appeal also found that the trial judge had made irreconcilable findings on aggravated and punitive damages and that he had misapprehended the evidence that the wire transfer was not a breach of CIBC’s Code of Conduct.

Though the court of appeal did not reverse the trial judge’s findings on cause, its decision affirms the importance of CIBC’s process of taking every breach of its policies seriously and responding in a measured and appropriate (and documented) fashion. The decision further highlights how, even in circumstances where an employer may not have a clear trail of cumulative instances of misconduct amounting to just cause for dismissal, the contextual history of an employee’s workplace conduct may form a crucial aspect of a court’s analysis of one particular act of misconduct said to amount to just cause.

We will be sure to report on the outcome of the new trial.




Delinquency Gone Viral: Addressing Employee Misconduct

Posted in Employee Obligations, Investigations, Just Cause, Termination, Wrongful Dismissal
Laura DeVries

The appeal (and risk) of social media is the speed of communication and the ease of wide-spread distribution by recipients. We have moved well past Andy Warhol’s 15 minutes of fame to an era of 15 seconds of fame. The pace at which a flippant remark or crass conduct can be recorded, broadcast, go viral, then be analyzed, blogged about and rehashed seems to be increasing exponentially. The risk to employees who are unfortunate enough to be identified or caught up in a social media frenzy appears to be on a similar upward trajectory.

The latest example of the race from TV sensation to unemployed was the recent dismissal of a Hydro One employee who mounted a crass and objectionable on-camera defence of a fellow miscreant yelling vulgarities at a reporter. The incident happened during coverage of a TFC soccer game on a Sunday. By Monday, footage of the incident had gone viral. After the man involved was identified, Hydro One confirmed on Tuesday that his employment had been terminated due to breach of its Code of Conduct.

This wasn’t an isolated incident. A printing firm employee was recently suspended from his employment after heckling a comic at an industry awards banquet. A pharmacy technician found herself without a job after negative Facebook posts about her employers came to light. Another employee was suspended from his job as a pruner with the City of Montreal after he was recorded apparently revving his chainsaw while approaching a vehicle in a road rage episode. Last year, Donald Sterling managed to get himself banned from the NBA for life after a tape of his racist remarks hit cyberspace. Jian Ghomeshi was dismissed from the CBC amidst publicized allegations of sexual assault, including accounts from his own Facebook and Twitter profiles. A Subway employee was fired after she sent a celebratory tweet regarding the killing of two police officers.

As these episodes demonstrate, social media has changed the landscape dramatically when it comes to employee misconduct, even for people who weren’t famous in the first place. With cell phone cameras, YouTube, Twitter, and Facebook always at the ready, the likelihood that employers will find out about their employees’ misdeeds – sometimes from those employees’ own social media profiles – has swiftly increased. And when the general public gets hold of a story, it’s virtually guaranteed (pun intended). In short, anonymity is largely a thing of the past.

Employers who learn about employees’ off-duty conduct via social media or the evening news should nonetheless proceed carefully. Just because an employee is being raked over the cyber-coals doesn’t automatically lead to the right to dismiss for cause. Employers are best to consider in advance how they might respond when misconduct on, or publicized by, social media comes to light.

A good plan starts with a clear communication of reasonable policies regarding employee conduct. If you don’t have a social media or off-duty conduct policy, reconsider. Also consider providing training on topics such as harassment and use of social media. Be explicit regarding the consequences of a breach, and apply policies consistently and fairly. If a code of conduct is properly incorporated into the employment contract, it may be possible to discipline or terminate an employee for breaching the policy.

In the event of misconduct, even when the court of public opinion is calling for termination, avoid knee-jerk reactions, which will increase potential liability for wrongful dismissal, defamation and other potential claims. Investigate incidents thoroughly, with an open mind, and ensure that the accused gets a proper opportunity to fully explain his or her side of the story. Any discipline should be proportionate to the offence, and reasons for the discipline must be clearly communicated. Taking hasty action may end up necessitating an awkward apology (recently, a school board retracted its call for a bus driver to be fired after a new video came to light which showed the driver being assaulted by a student) or triggering more serious legal consequences. And as we’ve discussed previously, lack of warnings about poor behaviour may be fatal to an employer’s case for cause.

Finally, although incidents of public misconduct – or private misconduct gone viral – may provide just cause for termination of employment, there is always risk. Courts will consider various factors in assessing the employer’s decision, such as whether the conduct:

  • will affect the employer’s reputation or cause it public embarrassment;
  • is related to the position held by the employee;
  • suggests that there are legitimate on-the-job safety concerns;
  • creates a conflict of interest with the employer’s work; or
  • makes other employees unwilling to work with the employee.

If an employee’s position is not one which affects the employer’s reputation, or if the public isn’t aware of where the employee works, the fact that an employee has behaved badly in public may not suffice to establish cause for termination.

Even if the standard of just cause is not met by the inappropriate behaviour of the employee, employers can always consider whether to end the employment without cause. For non-union employees, the employment relationship may be terminated without cause (provided the termination is not connected to a protected ground under human rights legislation, such as age or religion) by providing appropriate notice or pay in lieu of notice, depending on the terms of employment.

Given the increase in use of social media, employers can expect to have to deal with public instances of off-duty misconduct and should prepare to deal with such cases quickly and fairly. Clear and relevant policies and enforceable termination provisions in a contract of employment are the best ways for an employer to combat employee misconduct in the public eye.

McCarthy Tétrault launches Alberta Employer Advisor blog

Posted in Labour Relations, Occupational Health and Safety, Unions

McCarthy Tétrault launched its 13th blog today, Alberta Employer Advisor, to help clients manage the challenges they face in today’s workplace. The blog provides employers and HR professionals with analysis of the latest legal issues that affect employment-related practices, labour and human resources policies. In addition to providing clients with insights on the implications of new case law, as well as updates on the latest legislative and regulatory developments, the blog will be regularly updated with practical tips, specifically relevant in the Alberta marketplace. We encourage you to visit the blog and subscribe for regular updates.

Maternity leave was no reason to reduce bonus

Posted in Damages, Employment Standards, Termination, Wrongful Dismissal
Laura DeVries

Employment agreement interpreted in light of statutory right to maternity leave

The recent decision of the B.C. Supreme Court in Sowden v. Manulife Canada Ltd. is noteworthy for its interpretation of a written agreement regarding bonus payments, and the court’s reluctance to allow an employer to use an employee’s maternity leave as a reason to reduce her bonus payment.

Janice Sowden was a regional marketing director for Manulife Canada Ltd. (“Manulife”). Her remuneration was made up of a base salary plus a variable bonus, calculated partly on her success in recruiting new financial advisors to work for Manulife. In essence, the more valuable the assets brought to Manulife by Ms. Sowden’s recruits, the higher her bonus. Ms. Sowden had worked for Manulife for 20 years when she was dismissed in a corporate reorganization. In an earlier decision, the court had determined that Ms. Sowden was owed damages for wrongful dismissal based on a notice period of 20 months. This case concerned the calculation of those damages, especially her bonus for the 2012 year.

Ms. Sowden’s recruiting target for 2012 was set at $125 million, and confirmed in a letter to her in March, 2012. When the target was set, Manulife knew that Ms. Sowden would be going on maternity leave later in the year, but did not adjust the target to take this into account. Manulife also advised Ms. Sowden that her bonus was capped at 135% of base salary.

Ms. Sowden exceeded the target four months early, landing a deal bringing in several new recruits and portfolios worth hundreds of millions of dollars. It was the most significant recruitment of her career and probably the largest ever for Manulife. In the period leading up to the deal, her supervisor made several statements to the effect that if she exceeded the recruiting target, she would be awarded appropriately and the bonus cap would not apply. To seal the deal, Ms. Sowden worked extremely long hours, right up until the day before she gave birth.

Contrary to Ms. Sowden’s expectations, when Manulife paid Ms. Sowden her bonus in early 2013, it applied several deductions to the amount paid. Despite assurances to the contrary, Manulife applied the 135% bonus cap. In addition, it prorated the bonus to reflect the four months of maternity leave she took in 2012. Ms. Sowden returned to work in March 2013. She was notified in late May that her employment would be terminated nine days later.

In defending its bonus calculation before the court, Manulife relied on a term in the letter setting out her bonus entitlement which stated that “If you take an approved leave of absence your bonus will be prorated accordingly”. The court found that the term could not apply, since Ms. Sowden had “an absolute right to maternity leave under s. 51 of the Employment Standards Act”. It held:

[T]he recruiting portion represented a specific, calculable amount that [Ms. Sowden] had fully earned before her maternity leave. If the parties contemplated prorating of that amount, [Ms. Sowden] would have in effect been penalized for exercising her statutory right to maternity leave. I find the agreement cannot reasonably be read in that way and the recruiting portion of the bonus was not subject to prorating.

Regarding the statements made to Ms. Sowden by her supervisor, the court reasoned that employment contracts differ from others in that they govern long-term, changing relationships: “[t]he terms of the contract may vary over time and may be implied by the court, based on conduct and the history of the relationship”. Although the March letter set out certain terms of Ms. Sowden’s employment, in the court’s view, it did not constitute the entire contract, and it was possible to alter those terms through later discussions. Ms. Sowden’s supervisor had “led [her] to believe”, at several different points in time, that she could expect a bonus over and above what the March letter provided, if she landed the big deal. The agreement set out in the March letter had been varied by these statements so that the cap did not apply to the recruitment portion of the bonus derived from that deal.

Manulife had paid the plaintiff a bonus of $81,000 in 2013. After recalculation to reflect Manulife’s various errors, the court determined that the bonus should have been $62,500 higher. Manulife also owed Ms. Sowden $320,000 in damages in lieu of notice. After deductions for certain payments it had already made, Manulife was found to owe Ms. Sowden $143,111.52.

Case law on the employment contract implications flowing from statutory maternity/parental leave is not common and can be inconsistent, so it interesting to see a decision in which the issue is painted in terms of “reasonableness”. Leaves under the Employment Standards Act create clearly-defined statutory rights, but it is important to remember that these rights can affect the interpretation of an employment contract.

Employers would also be wise to take note of the court’s conclusion that the employment agreement was modified by the supervisor’s verbal statements. The interpretation of a contract is always carried out in light of the surrounding circumstances such as, in this case, the unusual scope of the recruiting effort. The court found it unlikely that Ms. Sowden would have worked as hard as she did until the last day of her pregnancy if she had not been led to believe that she would receive an additional bonus. The fact that her supervisor may have been purposely vague did not prevent the court from finding that the contract had been varied.