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British Columbia Employer Advisor Keeping Employers Posted on Developments in Labour and Employment Law

Author Archives / Donovan Plomp

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Pensions: The Basics

DB versus DC

By Donovan Plomp on Posted in Benefits, Compensation, Pensions

Our colleague Mark Firman from our Toronto office has recently posted a couple of short pieces to help sort out the differences and pros and cons between defined benefit and defined contribution pension plans. These are good reads for anyone thinking about setting up, reviewing or changing pension plans.   Look here to see Part I… → Read More

“Workplace Investigations – Part 3”

By Donovan Plomp on Posted in Discipline, Discrimination, Human Rights, Investigations, Just Cause, Termination, Workers Compensation, Wrongful Dismissal

In earlier posts, here and here, we discussed some legal issues that arise in workplace investigations. In this post, we will discuss some of the privacy issues that can arise. The investigator is often asked by nervous employees whether their identity and the information they give will be kept confidential. This cannot be guaranteed.  Employees being… → Read More

Workplace Investigations – Part 2

By Donovan Plomp on Posted in Damages, Discipline, Human Rights, Investigations, Just Cause, Termination, Workers Compensation, Wrongful Dismissal

In an earlier post, we discussed when employers may wish to conduct workplace investigations.  In this post we’ll discuss who should conduct the investigation. Being lawyers, we usually have a quick answer to this:  legal counsel. We recognize, however, that clients don’t have unlimited funds.  So practically speaking, each situation will have to be assessed… → Read More

Workplace Investigations – Part 1

By Donovan Plomp on Posted in Damages, Investigations, Just Cause, Termination, Wrongful Dismissal

With the complexity of workplace law and issues, employers are subject to an increasing number of workplace obligations.  When a workplace incident arises it’s often required, or at least advisable, that an employer conduct a prompt and thorough investigation. In this and subsequent posts, we will review some key legal issues that arise in conducting… → Read More

BC Human Rights Tribunal Awards Costs Against Complainant

By Donovan Plomp on Posted in Discrimination, Human Rights, Litigation

Employers are often frustrated by the fact that the BC Human Rights Tribunal rarely awards costs, even when an employee or former employee brings a frivolous complaint. In Edwards v. Schnitzer Steel Pacific, the Tribunal accepted the employer’s submissions that the complainant should pay costs for resiling from a settlement agreement. Edwards agreed to settle his complaint… → Read More

Hybrid Pension Plans Not the Best Answer

Time to Consider Target Benefit Plans

By Donovan Plomp on Posted in Benefits, Compensation, Pensions

One of the key elements of the new collective agreements recently reached by the Canadian Auto Workers with Ford, GM and Chrysler is a “hybrid” pension plan for new employees. It has both “defined benefit” (DB) and “defined contribution” (DC) components. This hybrid solution follows a similar arrangement between Air Canada and the CAW reached in September 2011…. → Read More

Less is More: Restrictive Covenants Part II

By Donovan Plomp on Posted in Employee Obligations, Litigation, Termination

As noted in our previous post, courts will not enforce a restrictive covenant against a departing employee unless the former employer can show the restraints imposed are reasonable between the parties and in reference to the public interest. So consider, 1.  Is there a legitimate business interest being protected? 2.  Is the restraint imposed reasonable, and… → Read More

The ties that bind (or not)…Restrictive Covenants, Part I

By Donovan Plomp on Posted in Employee Obligations, Litigation, Termination

The start of an employment relationship is, in some respects, like the start of a romantic relationship. Seasoned executives become giddy with the prospect of a new love, er, recruit. “He/she is perfect! I want him/her to start tomorrow!” they say to their employment lawyer. To which we say (among other things): “Do you want the… → Read More

Privacy Commissioner investigates Criminal Records Checks

By Donovan Plomp on Posted in Human Capital, Privacy, Recruiting

On July 25, 2012 the British Columbia Information and Privacy Commissioner released an investigation report regarding the use of employment related criminal record checks by the Government of British Columbia. The Commissioner concluded that the Government’s current policy with respect to criminal records checks contravenes the Freedom of Information and Protect of Privacy Act as, among… → Read More

Frustration – Part 2

By Donovan Plomp on Posted in Discrimination, Employee Obligations, Human Rights, Termination

In an earlier post here, we spoke about the possibility of alleging frustration of contract when an employee is absent for a lengthy period due to illness or disability.  The doctrine was also recently relied upon outside the disability context to terminate an employee whose criminal conviction prevented him from obtaining the necessary license to… → Read More

Frustration of Contract – Part 1

By Donovan Plomp on Posted in Discrimination, Employee Obligations, Human Rights, Termination

In earlier posts here and here, we discussed attendance management policies. When an employee is absent for a sufficiently lengthy period, an employer may eventually rely upon the legal doctrine of “frustration”, and terminate employment. (A similar concept for union employees is known as “innocent absenteeism”.) The doctrine of frustration of contract operates as a complete… → Read More

Deduction of Pension Benefits from Wrongful Dismissal Damages

By Donovan Plomp on Posted in Benefits, Compensation, Pensions, Damages, Termination, Wrongful Dismissal

In Waterman v. IBM Canada [2011] S.C.C.A. No. 427 (QL), the Supreme Court of Canada has granted to leave to appeal from a decision of the BC Court of Appeal deciding that pension benefits are not deductible from wrongful dismissal damages.  The Plaintiff Waterman was terminated without cause by IBM after approximately 42 years of service. … → Read More

The Overtime Trap – Part II

By Donovan Plomp on Posted in Benefits, Compensation, Pensions, Employment Standards, Wage and Hours

Managers “Managers” are exempt from the overtime provisions of the Employment Standards Act (British Columbia). But, beware of the narrow definition, and the potential for overtime claims at straight time. Not everyone called or considered a manager in the workplace is exempt. Only those who are employed in an executive capacity, or whose principal responsibilities are… → Read More

Suggesting Decertification Just Might Work

By Donovan Plomp on Posted in Labour Relations, Unions

What unionized employer hasn’t wished they could ask their employees to decertify? Most employers know that initiating and advocating in favour of a decertification application is considered improper interference.  But what if your company is facing financial ruin and you have nothing to lose?  In this case, the employer was facing severe financial challenges and… → Read More

The Overtime Trap – Part I

By Donovan Plomp on Posted in Benefits, Compensation, Pensions, Employment Standards, Wage and Hours

The Employment Standards Act (British Columbia) requires that an employer pay an employee overtime wages if it “requires, or directly or indirectly allows, the employee to work more than 8 hours a day or 40 hours a week.” An employee who can provide some evidence of starting early, staying late, working through lunch or doing work… → Read More

Collective Agreements and Employment Standards

By Donovan Plomp on Posted in Employment Standards, Unions

Employers with unionized employees must understand if and when the Employment Standards Act (British Columbia) will apply. Collective Agreement Prevails A collective agreement may have provisions that fall below the minimum requirements of the Act in the following areas: hours of work and overtime (Part 4), statutory holidays (Part 5), annual vacation and vacation pay… → Read More