Header graphic for print
British Columbia Employer Advisor Keeping Employers Posted on Developments in Labour and Employment Law

Author Archives / Donovan Plomp

Subscribe to posts by Donovan Plomp

Settling the Score: ABCA Finds Settlement Agreement Precluded Human Rights Complaint from Proceeding

Posted in Human Rights

In Buterman v. St. Albert Roman Catholic Separate School District No. 734, 2017 ABCA 196, the Alberta Court of Appeal confirmed that the province’s human rights tribunal lacked jurisdiction to hear a human rights complaint due to the existence of a settlement agreement.

Facts

Jan Buterman was removed from the roster of substitute teachers maintained by the Board of Trustees of the Greater St. Albert Roman Catholic Separate School Board District No. 734 (the “Board”) because he was in the process of transitioning from female to male. Mr. Buterman filed a complaint with the Alberta Human … Continue Reading

Employee’s secret recording of meetings with management contributes to finding of just cause for dismissal

Posted in Discipline, Employee Obligations, Just Cause, Litigation, Termination, Wrongful Dismissal

A recent decision from the Manitoba Court of Queen’s Bench supports that an employee’s use of his work phone to secretly record meetings with management may support an employer’s decision to terminate for just cause.

In Hart v. Parrish & Heimbecker, Limited [Hart], the plaintiff, Mark Hart, sued his former employer for wrongful dismissal after he was terminated for cause following a series of employee complaints against him. In the course of the litigation, Mr. Hart tendered as evidence recordings of conversations he had had with the defendant’s management personnel in the course of the defendant’s investigation into … Continue Reading

British Columbia seeks stakeholder feedback on the new human rights commission

Posted in Human Rights, Litigation

In August, I posted about Premier John Horgan’s announcement of the Government’s intent to re-establish a human rights commission. The intent of this new human rights commission will be to act proactively to address systemic discrimination and inequality in British Columbia.

The Government is now engaged in consultation with stakeholders and citizens, which will include online discussions with Parliamentary Secretary Ravi Kahlon, as well as in person meetings. If you would like to share your views on the role, functions and priorities of the new human rights commission, you can do so any time before November 17, 2017 at 4 … Continue Reading

British Columbia announces re-establishment of the Human Rights Commission

Posted in Human Rights, Legislative Changes

On August 4, 2017, Premier John Horgan announced the Government’s intent to re-establish a human rights commission. The British Columbia Human Rights Commission was dismantled about 15 years ago. Currently British Columbia has a direct access model allowing complaints to be brought directly to the British Columbia Human Rights Tribunal.  In jurisdictions with commissions (in other provinces and federally) complaints must first proceed through an investigation process with a human rights commission.

According to the News Release issued by the Office of the Premier, the intent of the new human rights commission will be to act proactively to address systemic … Continue Reading

Federal government restores former certification and decertification processes for unionization in federal workplaces

Posted in Labour Relations, Legislative Changes, Unions

On June 22, 2017, Bill C-4, An Act to amend the Canada Labour Code, the Parliamentary Employment and Staff Relations Act, the Public Service Labour Relations Act and the Income Tax Act, came into effect. This legislation changes certification and decertification rules for federally regulated workplaces. For more information, please visit the blog post “Federal Government Restores Former Certification and Decertification Processes for Unionization in Federal Workplaces” prepared by our colleagues in Toronto.… Continue Reading

Be Careful What You Wish For: Social Media Background Checks and Privacy Laws

Posted in Best Practices, Employer Obligations, Privacy

Social media has drastically changed the way people communicate and do business. Naturally, employers may want to take advantage of the convenience of performing background checks on social media. But with increased use of social media comes increased risk of a privacy violation.

In May 2017, the Office of the Information and Privacy Commissioner for British Columbia (OIPC) published a guidance document aimed at helping private organizations and public bodies navigate the complex relationship between social media background checks and privacy laws. The document’s main points are summarized below.

The collection, use, and disclosure of personal information retrieved from social … Continue Reading

Can an employment agreement executed after the employee starts work be enforced? The Ontario Court of Appeal says yes.

Posted in Best Practices, Employer Obligations, Termination

Julia Wood received an offer for employment from Fred Deeley Imports (“Deeley”) on April 17, 2007. Wood accepted the offer during the phone call, and later received an email from Deeley which outlined the terms of her employment. The parties could not recall the date of the email, but it was received by Wood prior to commencing employment with Deeley on April 23, 2007. Then, on April 24, 2007, Wood met with the human resources representative and signed various employment documents, including an employment agreement. Eight years later, Deeley terminated Wood’s employment. Wood commenced a wrongful dismissal action, alleging (among … Continue Reading

The Office of the Information and Privacy Commissioner reminds BC’s private businesses that use of video surveillance is a last resort

Posted in Employer Obligations, Privacy

In February 2017, at the 18th annual Privacy and Security Conference, Acting Commissioner Drew McArthur (“Commissioner”) commented on the first-ever audit of a private sector business conducted by the Office of the Information and Privacy Commissioner for British Columbia (“OIPC”). He stated that OIPC “used this audit as an important opportunity for public education, and a reminder to private businesses that they should only use video surveillance as a last resort after exploring other less privacy-invasive options.” The Commissioner’s speech is available here.

OIPC initiated the audit of the lower mainland medical clinic (“Clinic”) after receiving a complaint … Continue Reading

B.C. announces a 50 cent increase to the minimum wage effective September 15, 2017

Posted in Employer Obligations, Employment Standards, Wage and Hours

Earlier this month, we posted a list of minimum wage increases across Canada and noted Premier Christy Clark’s May 2016 announcement that the provincial government was committed to raising the minimum wage for employees in British Columbia to $11.25 per hour effective September 15, 2017 (click here).  In line with this commitment, B.C.’s Jobs, Tourism and Skills Training Ministry issued a news release yesterday announcing that, effective September 15, 2017, the minimum wage will rise by 50 cents to $11.35 an hour and the minimum wage for liquor servers will increase to $10.10 an hour. Read the full news … Continue Reading

An expanded Canada Pension Plan

Posted in Employee Obligations, Employer Obligations, Legislative Changes, Pensions

Much has been said about the recent agreement in principle between 8 of the 10 provincial finance ministers and the federal finance minister to expand the Canada Pension Plan. Our colleagues in Ontario have posted their thoughts on the matter, which includes a useful summary on the agreement, links to further details, some implications for employers – both generally and specifically in Ontario – and steps that employers should take to anticipate the expected changes.… Continue Reading

BC government enables smaller employers to give employees pension plans.

Posted in Benefits, Compensation, Pensions, Legislative Changes, Pensions

Pension plans can be a very helpful retention mechanism for good employees (and, it must be noted, bad ones too), and many larger employers offer them to their employees as part of their overall compensation package. However, the cost and complexity of pension plans have also meant that they may not be considered by most smaller employers. Recent legislative enactments have attempted to address this.

In 2012, the federal government enacted the Pooled Registered Pension Plans Act, creating Pooled Registered Pension Plans (PRPPs) at the federal level, in an effort to make large-scale defined contributions pension plans available to Continue Reading

Do Your Employees Require Time Off To Vote?

Posted in Elections, Employer Obligations, Legislative Requirements

Under the Canada Elections Act (“Act”), all Canadian employers (with some limited exceptions in the transportation industry) must ensure their employees have 3 consecutive hours free from work during opening hours for polls on election day.  According to the Act, polls are open for each electoral district of Canada as follows:

 

(a) from 8:30 a.m. to 8:30 p.m., if the electoral district is in the Newfoundland, Atlantic or Central time zone;

(b) from 9:30 a.m. to 9:30 p.m., if the electoral district is in the Eastern time zone;

(c) from 7:30 a.m. to … Continue Reading

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

Posted in Discrimination, Human Rights, Legislative Changes, Privacy

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) Continue Reading

“Virtual Slave” Awarded $50,000 for Injury to Dignity

Posted in Discrimination, Family Status, Human Rights, Immigration, Wage and Hours

Human Rights Tribunal found nanny was sexually assaulted, isolated and underfed by employer

Where an employer fails to meet its human rights obligations, the damages awards for the “injury to dignity” component of damages are becoming increasingly significant. The recent decision of the British Columbia Human Rights Tribunal in PN. v. FR and another (No. 2), is an example of the scale of penalty an employer can face where the breach of human rights obligations is at the extreme end of the scale.

The complainant, a domestic worker from the Philippines, was placed with the respondents as a housekeeper … Continue Reading

Set for Success: Defining Performance in 2015

Posted in Performance Management

Our colleague in Ontario, Melissa Kennedy, recently posted a helpful article about establishing, evaluating and managing employees’ work performance. As 2014 draws to a close, revisiting, and potentially, re-evaluating the performance management program in your workplace is a good idea and Melissa’s article is a great place to start. We reproduce her post below:

As we set to embark upon the year’s end, now is an appropriate time to begin goal setting and implementing employee performance objectives for the new year. Establishing clear expectations which are tied to the overall mission and vision of the organization, and which are aligned Continue Reading

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

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 … Continue Reading

New “Super Union” On The Block

Telecommunications Workers Union and United Steelworkers to Merge in 2015

Posted in Labour Relations, Unions

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 … Continue Reading

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

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
Continue Reading

When Does an Employer Own Copyright in a Photograph Made by an Employee?

Posted in Copyright, Intellectual Property

Our colleague, Keith Rose, has posted here about the recent British Columbia Supreme Court decision in Mejia v. LaSalle College International Vancouver Inc., 2014 BCSC 1559. The case is a reminder to employers about the importance of explicitly and comprehensively addressing intellectual property rights in employment agreements.… Continue Reading

BC Human Rights Tribunal Issues New Rules Of Practice and Procedure

Posted in Human Rights, Legislative Changes

Following on its new complaint and application forms introduced earlier this year, the British Columbia Human Rights Tribunal recently issued new Rules of Practice and Procedure (the “2014 Rules”), replacing its former Rules from January 2008. The 2014 Rules are directed at reducing the number of rules and streamlining and simplifying the complaint resolution process.

Some of the changes in the Tribunal’s 2014 Rules that employers should take note of include the following:

  • The Tribunal has done away with its previous “complaint stream” process;
  • The Tribunal has better articulated resources under the new Rules to defer complaints or adopt alternate
Continue Reading

No Anonymity for Grievors

BC Labour Board rules that grievors and witnesses should be identified in labour arbitration decisions

Posted in Labour Relations, Privacy, Unions

The Labour Relations Board has upheld BC Arbitrator Stan Lanyon’s decision in Sunrise Poultry Processors Ltd. v. United Food and Commercial Workers, Local 1518 (discussed previously here) that the names of grievors and witnesses should, as a general rule, be published in labour arbitration awards.

The union argued that British Columbia’s Personal Information Protection Act (PIPA) prohibits the disclosure of the names of grievors and witnesses in labour arbitration awards without their consent. In the union’s view, the increasingly easy public access to arbitration awards because of sophisticated internet search engines and free legal websites like Canlii mean … Continue Reading

What Do Your Policies Say About Termination?

… and does it matter?

Posted in Damages, Employment Standards, Termination, US vs.Canadian Employment Law, Wrongful Dismissal

Many employers have policies about termination, and specifically about what an employee is entitled to if terminated without cause.  It is a good idea to try to manage the cost of terminations, but it needs to be done properly to be effective.

Oliver v. Sure Grip Controls is a recent case where a termination policy was reviewed.  The employer tried to limit its liability by reference to the policy set out in the employee handbook.  The employer had gone to the trouble of having the handbook reviewed and signed by the employee, but the handbook included this underlined statement:

I Continue Reading

Age and Performance Management

Posted in Age, Human Rights, Termination

If you are going to lay off older workers while hiring younger ones in the same category, you better have a good explanation. That’s essentially what the BC Human Rights Tribunal said in Price and Top Line Roofing Ltd., 2013 BCHRT 306. The Complainant, Paul Price, was a journeyman working for the Respondent Top Line.  He was one of the two oldest journeymen employed at Top Line. Both were laid off in July, 2012.  A few months before this, however, Top Line had hired a journeyman in his 40s and two young journeymen apprentices.

Top Line said Price was … Continue Reading