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Author Archives / Earl Phillips

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Duty to Mitigate is Alive and Well

Plaintiff should have pursued job opportunity

By Earl Phillips on Posted in Damages, Employee Obligations, Litigation, Termination, Wrongful Dismissal

There was a job opportunity for the terminated employee.  He didn’t pursue it and he didn’t provide a reasonable excuse.  His claim for wrongful dismissal damages was denied. Rod Koenig had been hired by Brandt Tractor in 1987 and was terminated 22 years later.  He was given 9.5 months of working notice in January 2009, finished work… → Read More

Why DSM-5 is Important to Employers

By Earl Phillips on Posted in Discrimination, Human Rights, Occupational Health and Safety, Workers Compensation

The long awaited DSM-5 has arrived and the controversy rages. Meanwhile, no matter what employers may think about the changes, they have no choice but to deal with the inevitable fallout. DSM-5 is the “Diagnostic and Statistical Manual of Mental Disorders” as newly revised from the previous DSM-IV. It was formally introduced this week by… → Read More

Ambulance Service Failed in Duty to Accommodate

Manager also personally liable

By Earl Phillips on Posted in Accommodation, Discrimination, Human Rights

The BC Ambulance Service failed in its duty to accommodate a paramedic who could no longer palpate a pulse because of his mulitple sclerosis.  The employee’s manager was also held personally responsible. That was the decision of the BC Human Rights Tribunal after the employer had won an earlier case on judicial review.  We reported… → Read More

If Employees are Telecommuting …

Bucking the Yahoo! Trend

By Earl Phillips on Posted in Employee Obligations, Employment Standards, Human Capital, Occupational Health and Safety, Wage and Hours

Telecommuting may be on the way out at Yahoo! but it is very much alive elsewhere.  So if you have employees who are working from home, or if you are considering it,  you should think through the employment issues. The first question is:   Do you have a written agreement to set out the telecommuting rules?  If not, you need one…. → Read More

Bullying and Harassment, or Not

Time to Step Back and Consider

By Earl Phillips on Posted in Discrimination, Employee Obligations, Human Rights, Occupational Health and Safety, Workers Compensation

Tragic cases and more mundane legislative changes have everyone talking about bullying and harassment.  For employers it is necessary to take a step back and consider what is not workplace bullying and harassment. In BC in particular, with the advent of the new mental disorder provisions of the Workers Compensation Act, there has been a surge… → Read More

Employee or Independent Contractor?

The Best Intentions May Mean Nothing

By Earl Phillips on Posted in Employee Obligations, Independent Contractors

How can you be sure the independent contractor you have retained will not be considered an employee?  In a post last year we outlined the importance of the distinction, the consequences if you get it wrong, and the four tests that are typically applied.  We concluded the four tests boiled down to this question:  Is the person… → Read More

Annual Client Conference

Conference Materials Available Online

By Earl Phillips on Posted in Benefits, Compensation, Pensions, Employee Obligations, Employment Standards, Human Rights, Litigation, Occupational Health and Safety, Privacy, Termination

Thanks to over 230 clients who attended our annual full day client conference on Friday March 8. The materials for all the presentations and workshops are available online here. The materials cover: What we can expect from an NDP government in Victoria Privacy in workplace computers Bill 14 – The new harassment, bullying and violence in the workplace… → Read More

Restrictive Covenants Unenforceable

Lessons in Drafting from Ontario Court of Appeal

By Earl Phillips on Posted in Employee Obligations, Termination

The Ontario Court of Appeal has made some interesting findings that should be considered when looking at your non-competition and non-solicitation covenants. The case is Martin v. ConCreate.  We commented on the original decision (here) and noted that it had a useful and comprehensive review of the law on restricting post-employment activities.  The Court of… → Read More

Childcare and Family Status Discrimination

Struggling to find the right test

By Earl Phillips on Posted in Accommodation, Employee Obligations, Family Status, Human Rights

The Federal Court has weighed in on the side of broader application of family status discrimination.  Employers can expect more requests for accommodation of the choices their employees make about how they will meet their childcare responsibilities. We have discussed this issue and reviewed the competing theories in an earlier post.  This most recent case (Johnstone)… → Read More

Hacking, Extortion and Human Resources

The Need to Protect Employee Personal Information

By Earl Phillips on Posted in Privacy

It is not often that employers and HR practitioners have to worry about extortion, but the recent story about Drake International makes this a good time to remind employers of their obligations with employee personal information. Drake was the victim of a computer hacking and extortion scheme.  Instead of kidnapping a person, hackers are now stealing… → Read More

Mental Illness at Work

New Diagnoses May Affect Employers

By Earl Phillips on Posted in Human Rights, Occupational Health and Safety, Workers Compensation

A recent piece in the Vancouver Sun highlights some concerns with new mental illness diagnoses that likely are coming to your workplace. The Diagnostic and Statistical Manual of Mental Disorders is being revised.  When DSM V comes out next May we will see new mental disorders and broadened definitions of existing disorders.  It’s important because the DSM is basically the… → Read More

Target Not a Successor to Zellers

By Earl Phillips on Posted in Labour Relations, Unions

The BC Labour Relations Board has refused to declare Target a successor to Zellers for a location in Burnaby. The United Food and Commercial Workers Union, Local 1518 was seeking to extend its bargaining rights for the Zellers employees at Brentwood Mall.  That location was one of 220 leasehold interests across the country that Target… → Read More

Wal-Mart Ordered to Pay Over 1 Million in Damages

By Earl Phillips on Posted in Damages, Discrimination, Just Cause, Litigation, Termination, Wrongful Dismissal

On October 10, 2012, a jury awarded a former Wal-Mart employee over $1.4 million dollars in damages.  The jury found that the employee was constructively dismissed due to an abusive work environment at the Windsor Wal-Mart store.  This is the largest such award in Canadian history and, as expected, will be appealed by Wal-Mart. Summary… → Read More

Collective Agreement Severance Not Payable

Only accrued rights survive termination of the agreement

By Earl Phillips on Posted in Employment Standards, Labour Relations, Termination, Unions, Wrongful Dismissal

Employees terminated after the expiry of their collective agreement are not entitled to severance pay.  That is the bottom line, and the end of the line, for the former employees of Mercury Graphics since November 8, 2012 when the Supreme Court of Canada refused to hear their appeal.  The Saskatchewan Court of Appeal decision stands and provides some useful guidance… → Read More

Employee Responsibility for Safety

Charge for failing to report unsafe work

By Earl Phillips on Posted in Employee Obligations, Occupational Health and Safety, Workers Compensation

An employee in Ontario is facing a charge under that province’s Occupational Health and Safety Act.  It is not for causing an injury.  It is not for participating in unsafe work practices.  He is being charged for failing to report an unsafe work situation that he observed. This is not a BC case, so it… → Read More

Murphy’s Laws of HR

Union Terminations

By Earl Phillips on Posted in Discipline, Labour Relations, Murphy's Laws of HR, Termination, Unions

It’s time for another instalment in Murphy’s Laws of HR. The first two laws were posted some time ago.  #3 is posted in sympathy for those dealing with unionized employees, and to remind those with only non-union employees to count their blessings. Murphy’s Laws of HR #3 – The union always grieves a termination: even when… → Read More

Privacy in Workplace Computers

Employers can manage employee expectations of privacy

By Earl Phillips on Posted in Employee Obligations, Privacy

The Supreme Court of Canada has affirmed employer rights to assert control over employee computer use, but with qualifications. Some employer-friendly principles are stated in today’s decision of R. v. Cole.  They have to be untangled from the criminal law and Charter of Rights context and understood in light of the Court’s statement “I leave for… → Read More

Introducing Northern Workplaces, our New Client Newsletter

By Earl Phillips on Posted in Human Rights, Termination, US vs.Canadian Employment Law, Wage and Hours, Wrongful Dismissal

McCarthy Tétrault’s Labour & Employment Group has recently launched a newsletter destined for our U.S. clients and contacts entitled Northern Workplaces. Northern Workplaces is just one of the tools we are deploying to address labour and employment issues of interest to American-based clients and counterparts who deal with employment matters in Canada. Our first and… → Read More

Major New Union Coming

CEP Votes to Join with CAW

By Earl Phillips on Posted in Labour Relations, Unions

The Communication, Energy and Paperworkers Union voted today in favour of starting a new union with the Canadian Auto Workers. The CEP vote follows the CAW’s unanimous vote in August and completes a vital step toward creating a private sector union with over 300,000 members across Canada. In previous posts we have talked about the plans for the new union… → Read More

What’s Happening With Drug Testing in Canada?

Our Continuing Cross Border Dialogue

By Earl Phillips on Posted in Discrimination, Human Rights, Labour Relations, Privacy, Unions, US vs.Canadian Employment Law

Thanks to Jeff Polsky for answering my question about minimizing the risk of a runaway jury in US employment claims.  Those are important tips for employers in the US, and for employers in Canada whether or not we see more jury trials in employment cases. Another apparent distinction between US and Canadian employment law is drug… → Read More

Jury Trials in Employment Cases

Another US/Canada Difference

By Earl Phillips on Posted in Damages, Litigation, Termination, US vs.Canadian Employment Law, Wrongful Dismissal

Jeff Polsky has responded on the issue of at will employment and we’ll accept that there is good and bad in both systems.  The most important thing for employers from either the US or Canada operating in the other country is to understand the difference and make appropriate adjustments in hiring and firing practices. Jeff’s post… → Read More