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British Columbia Employer Advisor

Keeping Employers Posted on Developments in Labour and Employment Law

Bill To Amend Definition Of ‘Sex’ Under BC Human Rights Code Passes First Reading

Posted in Discrimination, Human Rights, Legislative Changes
Ryley Mennie

Private member’s Bill M 211-2014, titled Gender Identity and Expression Human Rights Recognition Act, passed first reading in the BC Legislature on November 20, 2014. If eventually given royal assent, the bill will amend the definition of ‘sex’ under the Human Rights Code to include “gender identity” and “gender expression”.

The full text of the bill can be read here. We will be sure to keep you updated as this bill makes its way through the Legislature and of its impact on human rights law in the province.

Court of Appeal Affirms Employee Has No Duty to Mitigate Contractual Severance

Dismissed employee was entitled to full contractual severance notwithstanding her failure to mitigate

Posted in Murphy's Laws of HR, Termination
Donovan Plomp

Many employers attempt to define an employee’s right to compensation upon dismissal by having clear, enforceable termination provisions in their employment contracts. But what happens if the dismissed employee is offered re-employment shortly after termination and fails to accept it? Is she still entitled to the full contractual severance amount?

The Court of Appeal, in its recent decision Maxwell v. British Columbia, confirmed the answer is yes: a dismissed employee was found to be entitled to the full amount of contractual severance and did not have to mitigate her damages by accepting an offer of new employment.

In this case, Ms. Maxwell was employed by the British Columbia College of Teachers as their director of certification. She was employed under an employment contract which stated that she was entitled to an “all-inclusive payment in lieu of notice” equivalent to a month of salary and benefits per year of service (plus additional amounts if she was employed longer than nine years or was over 50 years old) if her employment was terminated without cause.

Effective January 9, 2012, the College was dissolved by the province and replaced by the Teacher Regulation Branch (the “Branch”). On December 1, 2011, Ms. Maxwell was offered employment with the new Branch, but she did not accept it. Instead, she contended that she was entitled to the full severance amount and related benefits under her employment contract.

The College and Province declined to pay Ms. Maxwell’s severance, arguing, among other things, that she had failed to mitigate any damages caused by the termination of her employment when she declined the Branch’s offer of new employment.

The trial judge and the Court of Appeal both disagreed. The Court found that, when a contract provides for a specific severance payment upon termination, a dismissed employee is entitled to that amount and is not required to mitigate his or her damages by seeking or accepting new employment. The Court of Appeal put it this way (at para. 27):

Where a contract provides for the effect of termination, generally the provisions of the contract prevail. Recourse to the common law is not required.  In some circumstances, the contract may require mitigation, but where it does not the innocent party is entitled to what was agreed. The guilty party is not entitled to graft onto the bargain struck by the parties additional terms that dilute or modify the entitlement of the innocent party.

The case is a good reminder about the importance of carefully drafted termination provisions. If they want to preserve the employee’s duty to mitigate, employers should ensure that any contractual termination provisions which require a severance payment (and which exceeds minimum statutory standards) include an express obligation on the employee to seek and obtain reasonable new employment as a condition of the payment.

Supreme Court of Canada Gives Quick Win To BCTF On Parental Benefits

Posted in Benefits, Compensation, Pensions, Human Rights, Labour Relations, Litigation, Unions
Christopher McHardy

The Supreme Court of Canada recently made a rare oral ruling from the bench, giving the B.C. Teachers’ Federation (“BCTF”) a quick win in their appeal of a decision by the B.C. Court of Appeal regarding discrimination and unequal treatment under the Human Rights Code and the Charter of Rights and Freedoms.

The case started in 2012 with a grievance filed by the BCTF against the British Columbia Public School Employers’ Association and the Board of School Trustees of School District No. 36 (collectively, the “Employer”). The grievance alleged that the collective agreement discriminated against birth mothers in that it only provided supplemental employment benefits (“SEB”) to a birth mother for pregnancy leave or parental leave. That is, birth mothers could qualify for the SEB during either pregnancy leave or parental leave; birth fathers and adoptive parents could of course only receive the SEB during parental leave. In any case, birth mothers, birth fathers and adoptive parents were eligible for a total SEB of 17 weeks.

The arbitrator held this constituted discriminatory and unequal treatment because birth mothers could not qualify for parental leave SEB if they received the pregnancy leave SEB, even though these leaves are for different purposes. The arbitrator did not opine on the appropriate remedy for the discrimination, because the parties were engaged in collective bargaining and could determine themselves how best to remedy the offending provision of the collective agreement in light of the arbitrator’s decision.

The B.C. Court of Appeal decision held that the arbitrator had erred in finding discriminatory or unequal treatment. In fact, birth fathers had been brought into the SEB scheme in earlier versions of the collective agreement in order to provide equal treatment for all parents. The court concluded that the distinction between the purpose of pregnancy/maternity leave and parental leave was not material and that, since the collective agreement provided the same SEB benefit to birth mothers, birth fathers and adoptive parents, there was no unequal treatment.

The Supreme Court of Canada made quick work of the BCTF’s appeal, ruling from the bench that the B.C. Court of Appeal’s decision could not be sustained and reinstating the decision of the arbitrator. In its following written decision, the Court held simply:

The Court of Appeal erred in failing to give deference to the Arbitrator’s interpretation of the collective agreement and in failing to recognize the different purposes of pregnancy benefits and parental benefits. The Arbitrator was entitled to reach the conclusions that he did and we see no reason to interfere with the remedy. The appeal is allowed with costs and the Arbitrator’s award is restored.

What does this mean for employers? First off, it bears repeating that the arbitrator did not make any remedial order, expecting that the parties would resolve it following the grievance decision. Accordingly, the state of the law remains simply that employers cannot discriminate in the provision of benefits on the grounds protected under the Human Rights Code. Employers should review their leave and benefit policies and any applicable agreements to ensure that birth mothers are afforded access to benefits that are available to mothers and parents.

Of concern to employers is the fact that the BCTF mutually bargained this benefit and its terms with the Employer.  Having struck this deal with the Employer, it seems the BCTF should be equally liable for any discrimination against birth mothers.  For this reason, beware of concession bargaining where a union appears to be offering a concession that it could turn around and challenge as soon as the collective agreement is settled.

Holiday Parties – Keep the Season Jolly

Posted in Discrimination, Human Rights, Occupational Health and Safety, Workplace Training
Ryley Mennie

Our colleague in Toronto, Melissa Kennedy, recently posted about the joys and legal perils of workplace holiday parties. Her post is an excellent reminder of best practices every employer should undertake to make sure that a holiday party does not lead to less jolly legal consequences. We reproduce Melissa’s post below.


With the holiday season fast approaching, many organizations are in the midst of planning their annual holiday parties, meant to recognize the culmination of a year of hard work by employees and celebrate the holiday season. Although this time of year is marked with celebration and provides for a valuable team building opportunity, it can also bring with it particular obligations and potential liabilities for an employer. When planning and hosting a holiday party, there are a number of factors that an organization must consider in order to reduce liabilities and take every precaution reasonable to ensure the health, safety and protection of its employees. These include:

1. Alcohol Consumption

The over-consumption of alcohol can lead to a number of unfavourable outcomes; accordingly, it is important to limit the in-take of alcohol by guests. This can be achieved by setting a fixed period of time where alcohol will be served; restricting the types of alcohol that are served (e.g. serving wine and beer options, excluding spirits or hard liquor); and/or providing a controlled number of drink tickets per guest.

2. Transportation

Ensuring that there are transportation options available to employees, following the conclusion of a holiday party is very important, especially where alcohol has been served. A good practice is to pre-arrange transportation with a local taxi company, either by ensuring that there are taxis on standby and/or providing taxi chits to employees following the conclusion of the event. In some cities there are designated driver services available whereby a licensed operator will drive an individual and their vehicle home when they are unable to drive themselves.

3. Discrimination

Given the abundance of faiths, religious denominations and practices that an organization’s employees may affiliate themselves with, it is important to ensure that holiday parties remain non-denominational in nature. This will ensure that no employee is made to feel excluded and will eliminate the likelihood of a Human Rights violation and subsequent claim.

4. Harassment

Where alcohol is being consumed, there is an increased risk of inappropriate behaviour by individuals. In order to remind employees of expectations regarding mutual respect, it is good practice to distribute a copy of the organization’s anti-harassment policy well in advance of the holiday party. This will ensure that employees are mindful of their actions towards others while in attendance. Including a copy of the organization’s dress code may also be worthwhile, reminding employees that expectations for appropriate attire in the workplace remain unchanged.

5. Communication & Monitoring

Transparent and consistent communication of expectations surrounding alcohol consumption, appropriate behaviour and suitable attire, well in advance of the holiday party, will ensure that employees are aware of their responsibilities. Providing details about transportation options prior to the holiday party, will afford employees with the opportunity to arrange their journey home safely and without setback. Moreover, assigning one or two individuals from the organization with the responsibility to monitor guests’ behaviour and alcohol consumption, and ensure that they obtain appropriate transportation home, will further safeguard employees and reduce the organization’s liabilities.

New “Super Union” On The Block

Telecommunications Workers Union and United Steelworkers to Merge in 2015

Posted in Labour Relations, Unions
Donovan Plomp

Since Unifor was created from the merger of Canadian Auto Workers and Communication, Energy and Paperworkers Union last year, another merger of unions in Canada has seemed likely. The expectation became the reality on November 7 when the Telecommunications Workers Union voted to merge with the United Steelworkers. The merger will become effective January 1, 2015, but the two unions have announced they will begin joint activities immediately.

What can you expect from the new union? As we saw with Unifor, the new union will undoubtedly engage in renewed organizing efforts and other campaigns. The merger agreement promises an initial commitment of $1 million to organizing new bargaining units, and creates a new USW Telecommunications Council, which will be focused on building union density and “organizing the unorganized” in the telecom industry. You can review the full merger agreement here.

While the specific efforts of the new union (and fruits of those efforts) remain to be seen, the best approach for all employers is to remain committed to positive employee relations and engage in regular, two-way communication to ensure that third party messages do not resonate with employees.

Time Off to Vote in Municipal Elections?

Posted in Employee Obligations, Employment Standards, Labour Relations, Wage and Hours
Rosalie Cress

Are employers obligated to give employees time off to vote in the general local elections this Saturday, November 15?

The short answer is no. Unlike in provincial and federal elections, there is no statutory obligation under the Local Government Act on employers to provide employees with time off from work to vote in local government or municipal elections. The polls for these elections are open from 8am-8pm, and employees may vote in advance polls or even by mail ballot if they have conflicting commitments on the general voting day.

Although there is no legal obligation to provide time off, we recommend that employers encourage employees to vote by scheduling shifts, if possible, so employees have sufficient hours available to vote between 8am-8pm, and by sending a reminder to employees to take advantage of the advance polls or alternative voting options if they may have difficulty finding time to vote on November 15.

OH&S Month Part 4: The Loneliest Number? Regulations for Employees Working Alone

Posted in Occupational Health and Safety, Workers Compensation, Workplace Training, WorkSafeBC
Christopher McHardy

Many employees work alone or in isolation, whether from time to time or as a regular part of their work. In addition to an employer’s general statutory obligation to ensure a safe work environment under the Workers’ Compensation Act, employers have additional specific obligations to protect employees who work alone or in isolation under the Occupational Health and Safety Regulation (the “Regulation”).

Under the Regulations, “working alone or in isolation” means to work in circumstances where assistance would not be readily available to the employee, either in the case of an emergency, or if the employee is injured or ill. Employers must take the following steps to ensure the safety of employees who work alone or in isolation:

  1. Assess and identify the risks and hazards which employees may face when they are working alone or in isolation, and inform employees about them.
  2. Take steps to eliminate or minimize the risks and hazards.
  3. In consultation with the employees who are assigned to work alone or in isolation, develop and implement a written procedure for checking on the well-being of employees working alone or in isolation (the “check‑in procedure”). The check-in procedure must include:

(a)   a designated person who will contact the employee who is working alone and record
the results;

(b)   time intervals between checks which depend on the level of risk;

(c)   a check‑in at the end of each shift; and

(d)   a procedure to follow in case the employee who is working alone cannot be reached.

4.     Train the employees involved on the check‑in procedure.

5.     Review the procedures at least annually, or more frequently whenever there is a change in the working arrangements or the check-in procedure is ineffective for any reason.

In addition, employers which operate a gas station, convenience or retail store between the hours of 11 p.m. and 6 a.m. must take additional steps to protect employees who work alone or in isolation. If there is any risk of violence to an employee working during such hours, then, in addition to the required assessment, check-in procedure, and training described above, the employer must develop and implement a written procedure to ensure the worker’s safety when they are handling money and must do one or more of the following:

  • Ensure that the worker is physically separated by a locked door or barrier that prevents physical contact with or access to the worker;
  • Assign more than one worker during that shift; and/or
  • Implement a violence prevention program, including a time lock safe that cannot be opened during the hours of 11:00 p.m. and 6:00 a.m., storage of cash and lottery tickets not reasonably required during the shift in the safe, good visibility into the store, limited access to the workplace, video surveillance, signs visible to the public notifying them of the above, and a personal emergency transmitter for the employee which is monitored by the employer or a security company.

All employers, as part of their OH&S program, should regularly review the circumstances in which their employees may be working alone or in isolation, and ensure that they have policies and procedures in place to comply with the Regulation and to minimize any health and safety risks to employees.  

OH&S Month Part 3: Annual Review Of Your Bullying and Harassment Policies

Posted in Investigations, Litigation, Murphy's Laws of HR, Occupational Health and Safety, Workers Compensation, Workplace Training, WorkSafeBC
Donovan Plomp

The deadline for compliance with WorkSafeBC’s bullying and harassment policies was last November 1, 2013.  We’d like to remind all BC employers that certain obligations under the policies require an annual review.

As we discussed in an earlier post, the policies set out nine requirements for employers to meet:


  1. Develop a policy statement about workplace bullying and harassment not being acceptable or tolerated.
  2. Take steps to prevent or minimize workplace bullying and harassment.
  3. Develop and implement procedures for reporting bullying and harassment, and specifically provide for reporting an incident when the alleged harasser is the employer, a superviosr or someone acting on behalf of the employer.
  4. Develop and implement procedures for investigating, following up and recording complaints of bullying and harassment.
  5. Inform workers of the policy statement in 1 and the steps taken in 2.
  6. Train supervisors and workers on workplace bullying and harassment.
  7. Annually review 1 – 4.
  8. Not engage in bullying and harassment of workers and supervisors.
  9. Apply and comply with policies and procedures on bullying and harassment.

We expect many employers will be approaching the annual date for a review of numbers 1-4, above. Accordingly, it is time to begin the process of reviewing policies and procedures surrounding bullying and harassment. As part of that process, employers will want to ensure they create and maintain a written record of compliance with the review process.

OH&S Month Part 2: Unsafe Work Refusals, Now Narrower for Federal Workers

Posted in Investigations, Labour Relations, Legislative Changes, Occupational Health and Safety, Unions, Workers Compensation
Ryley Mennie

In every jurisdiction in Canada, employees and employers share the responsibility for ensuring a safe and healthy work environment. In British Columbia, employers are required by the Workers Compensation Act [WCA], to ensure the health and safety of their employees and others working at their work place, which includes investigating safety risks and advising employees of same, and taking steps to eliminate or mitigate identified risks. Likewise, employees have obligations to protect their own and others’ health and safety, including reporting fit to work, wearing protective equipment, following safety procedures, and reporting any safety risks.

One aspect of the complementary obligations of employers and employees to ensure a safe work environment is the internal responsibility system regarding unsafe work, which involves the employee’s right to refuse to perform unsafe work and the employer’s obligation to investigate and remedy any unsafe work. In British Columbia, this right is set out in section 3.12 of the Occupational Health and Safety Regulation [Regulation], which states in part:

“A person must not carry out or cause to be carried out any work process or operate or cause to be operated any tool, appliance or equipment if that person has reasonable cause to believe that to do so would create an undue hazard to the health and safety of any person.”

The test for whether a refusal is valid is whether the worker has a reasonable cause to believe the work creates an undue health and safety hazard, with “hazard” being defined as “a thing or condition that may expose a person to a risk of injury or occupational disease”, therefore including “potential” hazards.

Federal employees have a similar right to refuse unsafe work under section 128 of the Canada Labour Code [CLC] which, like the Regulation, involves specific procedures that must be followed when an employee refuses to perform work that is claimed to be unsafe. At present, the procedures under provincial and federal legislation are similar, and generally include:

  1. An employee must immediately repeat his or her refusal to perform unsafe work to his or her supervisor or employer.
  2. The supervisor/employer must immediately investigate and either promptly remedy the unsafe condition or inform the employee that the refusal is invalid.
  3. If the employee continues to refuse, the supervisor or employer must investigate in the presence of the employee and either a member of the Joint Health and Safety Committee or Worker Representative, an employee selected by the trade union, or if no committee or union, another reasonably available employee.
  4. If the refusal is still not resolved, the supervisor/employer and employee must notify a health and safety officer, who must immediately investigate.

Once an employee has excercised his or her right to refuse to perform unsafe work, both the WCA and Regulation and the CLC prohibit an employer from taking any discriminatory or retaliatory action against the employee.

In response to concerns about unjustified work refusals under the CLC, the federal government introduced amendments to the CLC in its omnibus budget Bill C-4 last year, narrowing the circumstances in which a federal employee may refuse to conduct unsafe work and amending the investigation process to enhance the internal responsibility of employers and employees to ensure a safe working environment. Currently, the definition of “danger” under the CLC, like the definition of “hazard” in British Columbia, is relatively expansive:

“any existing or potential hazard or condition or any current or future activity that could reasonably be expected to cause injury or illness to a person exposed to it before the hazard or condition can be corrected, or the activity altered, whether or not the injury or illness occurs immediately after the exposure to the hazard, condition or activity, and includes any exposure to a hazardous substance that is likely to result in a chronic illness, in disease or in damage to the reproductive system.”

As of October 31, 2014, “danger” will be defined more narrowly as:

“any hazard, condition or activity that could reasonably be expected to be an imminent or serious threat to the life or health of a person exposed to it before the hazard or condition can be corrected or the activity altered.”

The CLC amendments also include the elimination of “health and safety officers” (to be replaced with the Minister or its appointees) and changes to the procedures applicable to investigations of unsafe work refusals, including:

  • upon being notified by an employee of a refusal to perform unsafe work, an employer is expressly required to investigate and prepare a written report;
  • if the work refusal continues after the employer’s initial investigation, employer and employee representatives must investigate collaboratively and prepare a further written investigation report;
  • the employer must provide all written investigation reports to the Minister if the employee continues to refuse to perform work claimed to be unsafe;
  • the Minister may refuse to further investigate a claim of unsafe work following the workplace investigations; and
  • an employee may not continue to refuse to perform work once the circumstances have been investigated by the employer and employee representatives and the Minister has either agreed that no danger exists, or has refused to further investigate the matter.

In a Consultation Paper published by the Department of Finance in connection with Bill C-4, the federal government stated that the amendments arose in large part because “over 80% of refusals to work in the last 10 years – from 2003 to 2013 – have been determined to be situations of no danger, even after appeals.”

It is interesting to note that the new definition of “danger” under the CLC will be similar to its previous definition, prior to 2000, at which point the CLC was amended to include the current concepts of “potential dangers”.

Although objections have been voiced by workers’ rights groups regarding the amendments to the CLC, in light of the statistics regarding valid unsafe work refusals and the significant costs and work disruptions associated with investigating claims of unsafe work, it is no surprise that the federal government has taken action to address these concerns. Although BC legislation also addresses potential hazards, we are not aware of any calls for similar changes to the legislation in British Columbia.

We’ll be sure to keep you updated of any further developments in the federal and provincial spheres.

Introducing Occupational Health & Safety Month!

Posted in Occupational Health and Safety, Workers Compensation, Workplace Training, WorkSafeBC
Rosalie Cress

This month, we introduce a new series focusing on occupational health and safety (“OH&S”) issues to help employers ensure health and safety in the workplace and avoid penalties under the Workers’ Compensation Act and Occupational Health and Safety Regulation (the “Regulation”).

First, do you have a written Occupational Health & Safety program? The Regulation requires that all employers with a workforce of 50 or more workers, or with 20 or more workers in a workplace with a high or moderate risk of injury must have a written OH&S Program.  (You can find out your workplace’s assigned hazard rating here.)  When investigating a workplace safety incident, one of the primary considerations WorkSafeBC takes into account when deciding whether to levy a penalty against an employer is whether the employer has an OH&S Program that conforms to all the requirements of the Regulation.

OH&S Programs must be generally designed to prevent injuries and occupational diseases, and must include the following provisions:

  • a statement of the employer’s aims and the responsibilities of each of the employer, supervisor and workers;
  • regular inspections of the workplace, equipment, and work practices at appropriate intervals, so that hazardous conditions are promptly identified and corrected;
  • written instructions on safe work practices to supplement the Regulation which are available for reference by all workers;
  • periodic management meetings to review health and safety activities, incidents and trends, and to determine necessary courses of action;
  • prompt investigation of OH&S incidents to determine how to prevent their recurrence;
  • maintenance of records and statistics, including inspection reports and incident investigation reports, and how this information will be provided to the Joint Health and Safety Committee or Health and Safety representative (as applicable); and
  • instruction and supervision of workers on how to perform their work safely.

For workforces with less than 50 workers (or less than 20 workers in a moderate or high risk of workplace), employers are not required to have a written OH&S Program with the above provisions. Instead, employers must have a less formal program in place, involving monthly meetings with workers to discuss health and safety matters and correct unsafe conditions, and keep records of the meetings.

To make sure that your business is fully compliant with the Act and Regulation, we recommend that you regularly review your OH&S Program, at least annually, and ensure it is up-to-date whenever changes are made.

In the coming weeks, we will post on other key OH&S issues, including bullying and harassment and employees working alone. Stay tuned!