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

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Other December Blog Posts

Non-employment issues of interest

Posted in Litigation, Privacy

As usual, our colleagues in other areas of practice are raising issues that may be of interest to employers in BC.  Here are three from this month:

BC’s Low Carbon Fuel Standard – This could affect your business in BC.

Foreign Judgment Enforcement in Canada – If your business is operating outside Canada, you need to understand the reach of the law of those other countries.

Privacy Law Changes in Europe – Might these ideas find their way to Canada?… Continue Reading

Pension Benefits Not Deductible from Wrongful Dismissal Damages

More like private insurance

Posted in Benefits, Compensation, Pensions, Damages, Litigation, Termination, Wrongful Dismissal

The Supreme Court of Canada has decided that pension benefits received by a dismissed employee are not to be deducted from an award of wrongful dismissal damages.  The decision in IBM Canada v. Waterman affirms an earlier ruling of the BC Court of Appeal which we discussed here.

Mr. Waterman was a long-service employee who was terminated with two months’ notice when he was 65.  He rejected a severance offer that would have provided him some wages and some pension.  He sued for wrongful dismissal but in the meantime began to get payments under the defined benefit pension plan … Continue Reading

Proposed Employment Law Reform in Ontario

Bill 146 Worth Watching

Posted in Employment Standards, Immigration, Investigations, Litigation, Occupational Health and Safety, Unions, Wage and Hours, Workers Compensation

The Ontario government has introduced a bill to make significant changes to employment law in that province.  Every BC employer with employees in Ontario should follow the course of these proposed changes.

As our colleagues in Ontario note, the Bill may not become law under the current government, but the proposals are wide-ranging and follow earlier Law Reform Commission recommendations.  See their analysis here.… Continue Reading

Alberta Privacy Legislation Shot Down

Will also affect BC

Posted in Labour Relations, Privacy, Unions

The Alberta Personal Information Protection Act has been declared unconstitutional by the Supreme Court of Canada.  The sweeping decision was prompted by union video surveillance of people crossing a picket line.  Because PIPA does not have any exemption to allow for a union to advance its interests in a labour dispute, it was held to be an unreasonable restriction on the union’s freedom of expression guaranteed by the Charter of Rights.

Alberta will have 12 months to make changes to the law before the declaration of invalidity takes effect.  BC is effectively in the same boat since its Personal Continue Reading

Strike Vote Not Valid

Exchange of views on all key issues required

Posted in Labour Relations, Unions

The Labour Relations Board has confirmed that strike votes must be meaningful.  In effect, collective bargaining must have progressed at least to the point where it is clear what is in dispute before a strike vote can meet the legal requirements of the Labour Relations Code.

There has been a growing frustration over unions quickly moving to strike votes and strike notice in the middle of collective bargaining.  The Code requires collective bargaining, followed by a strike vote, followed by 72 hour strike notice before a union is in a legal strike position.  Too often, unions have been holding … Continue Reading

BC Employers Face Bullying and Harassment Deadline

WorkSafeBC Policy Takes Effect November 1

Posted in Occupational Health and Safety, Workers Compensation, WorkSafeBC

It’s not too late, and it’s not too hard to comply, but the deadline is looming.  WorkSafeBC’s policy regarding compliance with the bullying and harassment law enacted in 2012 will come into force on November 1.

We have previously described the legislation, and we have set out a plan for compliance.  We can help employers get ready by November 1, and we can help in the training and the follow up that is required.  Employers can also find help on the WorkSafeBC website which has a toolkit of materials to review and adapt.

 … Continue Reading

November 1 Deadline for Bullying Policy

Policy and Other Steps Required

Posted in Occupational Health and Safety, Workers Compensation, WorkSafeBC

WorkSafeBC’s requirements for establishing and implementing a policy on bullying and harassment take effect on November 1.

The policy sets out 9 specific requirements and we have previously suggested an approach to ensure you are in compliance as of November 1.

Meanwhile, WorkSafeBC has promised a tool kit and guideline to assist employers.  The tool kit is scheduled for publication on October 2.  You should be able to find it and other resources on the WorkSafeBC website.… Continue Reading

Best of the Blogs

Items of Interest for BC Employers

Posted in Employee Obligations, Employment Standards, Human Capital, Human Rights, Litigation, Privacy, Termination, Wage and Hours

Our firm now publishes 10 different blogs, and they often have items of interest for BC employers.  Here is a sampling of recent posts:

Customer Contacts on Linkedin = Property of the Employer – good news from the UK courts.

Five Employment Issues Facing Retailers – similar issues for retailers in BC.

Notices of Termination – can you terminate an employee before the effective date of their resignation?

Restrictive Covenants and Sale of a Business – how are they interpreted and when will they be enforced?

10 Things You Should Know About BC’s New Limitation Act – including reducing the … Continue Reading

CAW and CEP Merger Completed

New union called Unifor

Posted in Labour Relations, Unions

Unifor, a new Canadian union with over 300,000 members, was created on the Labour Day Weekend.  It represents the completion of the long-awaited merger of the Canadian Auto Workers and Communication Energy and Paperworkers unions.

As we have previously reported, the new union has high hopes and and is making promises to do some things differently.  There is a stated commitment to renewed and more vigorous organizing efforts, and there is talk of reaching out to younger workers.  But there is also much of the old class warfare rhetoric and railing against corporations and bankers.  Employers should continue to … Continue Reading

Google Glass Coming to Your Workplace

Are you ready?

Posted in Employee Obligations, Occupational Health and Safety, Privacy

Wearable computing is creating quite a stir, and its likely introduction into the workplace is worth preparing for.

Google Glass is still in field trials and not generally available, but already it has been banned from places that don’t want people to be able to compute, take photos, record, access the internet, and generally be a walking computer, through a pair of glasses.

Privacy authorities in Canada, Europe, Australia, New Zealand, Mexico and Israel are concerned.  They have written to Google to remind them of the law on collecting, using and disclosing personal information, and to chastise Google for not … Continue Reading

Surveillance by Union Allowed

Necessary for Investigation of Replacement Worker Violations

Posted in Labour Relations, Privacy, Unions

Two different panels of the BC Labour Relations Board have made findings in favour of a union’s covert video surveillance at the IKEA store in Richmond, BC.  The store has operated behind a picket line since May 13.

With over 300 unionized employees on the outside looking in, and only 27 who have decided to cross the picket line, most store operations have continued.  The kids’ ballroom is closed, and the 600 seat cafeteria isn’t serving up Swedish meatballs (or anything else), but otherwise the store is open and sales are being made.  That has made the union suspicious that … Continue Reading

Scholarship for Paige Morrow

Pursuing Masters Degree in London

Posted in Awards and Recognitions

It is with sadness, but a lot of pride, that we announce the departure of our associate Paige Morrow at the end of August.

We will miss having Paige as part of our Labour and Employment team, but we are very proud to say she is going to the London School of Economics on a scholarship to pursue further studies in human rights.

You can get more details from Canadian Lawyer Magazine.

 

We will be introducing a new member of our team in September.… Continue Reading

Another Employee Computer Privacy Case

But no clarification of employer rights

Posted in Investigations, Privacy

The case of R. v. McNeice involves a teacher with pornography on his employer-issued computer.  If that sounds familiar, you are probably thinking of R. v. Cole, the Supreme Court of Canada decision we reported on previously.

As noted by our colleagues in the Canadian Appeals Monitor blog, the two cases are very similar, but unfortunately the BC Court of Appeal did not take the opportunity to consider the employment issues involved.

For now then, this is just another reminder of the importance of employers having clear policies about personal use of employer-issued computers to help ensure a … Continue Reading

Worker Cannot Sue for Workplace Injury

"Historic trade-off" affirmed

Posted in Employee Obligations, Litigation, Occupational Health and Safety

Workers’ rights to sue over workplace accidents are severly restricted by workers compensation schemes across the country.  Statutes like the Workers Compensation Act of BC provide workers with access to an insurance scheme that does not depend on finding fault or the ability of the employer to pay for a workplace injury, illness or death.  But in exchange, workers cannot sue the employer or other workers.  That has been described as the “historic trade-off” and the Supreme Court of Canada recently re-affirmed the principle.

The case of Marine Services International v. Ryan Estate is mostly about the interplay of federal … Continue Reading

Bullying and Harassment Policy

November 1 Effective Date

Posted in Investigations, Occupational Health and Safety, Workers Compensation

Employers in British Columbia should be thinking about how to meet WorkSafeBC policies on workplace bullying and harassment that take effect November 1, 2013.  (See our previous posts on the policy and the new legislation.)

WorkSafeBC has promised new guidelines and a toolkit to help employers comply, but there are some things to start thinking about.

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,
Continue Reading

Human Rights Tribunal Takes On Forum Hopping

Does not further the purposes of the Code

Posted in Accommodation, Discrimination, Human Rights, Unions

The BC Human Rights Tribunal has breathed new life into the concept of what it means to further the purposes of the Human Rights Code with the result that employers have some hope in stopping forum hopping and serial litigation.  Mahdi v. Hertz Canada Limited could prove to be one of the Tribunal’s most important dismissal decisions yet.

Mr. Mahdi is a long time unionized employee of Hertz.  Over the course of about four years he pursued multiple  grievances about his vacation rights.  He had some success following hearings or by way of settlement.

Before the last of his vacation … Continue Reading

Where Are We With Alcohol and Drug Testing?

Time to review policy and procedure

Posted in Accommodation, Employee Obligations, Human Rights, Investigations, Occupational Health and Safety, Privacy

The recent Supreme Court of Canada decision about random alcohol testing has received a lot of attention, for good reason.  Now seems to be a good time to review where we are and what employers must do if they want to have an effective drug and alcohol policy.

As noted in earlier commentary on the Irving Pulp decision, the matter of drug and alcohol testing has been evolving for some years, and that is likely to continue as different facts generate different concerns.  In the meantime, employers have interests and obligations that demand the implementation of effective drug and alcohol … Continue Reading

Duty to Mitigate is Alive and Well

Plaintiff should have pursued job opportunity

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 in October 2009 and didn’t start new employment until April 2010.

But in June 2009 he was approached by a former work colleague, Mr. Jones, about a comparable position.  Mr. Koenig expressed no interest and did not pursue the opportunity.  Mr. Jones considered … Continue Reading

Why DSM-5 is Important to Employers

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 the American Psychiatric Association and it becomes the authoritative source in North America for diagnosing mental disorders. (An earlier post talked about some of the controversy in the making of DSM-5.)

Why is it important to employers in BC?

First – it is authoritative – … Continue Reading

Ambulance Service Failed in Duty to Accommodate

Manager also personally liable

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 on the judicial review in an earlier post because it established the important principle that the duty to accommodate does not include an independent procedural duty.  The matter was sent back to the Tribunal to reconsider, and with that second look, the result is worse … Continue Reading

If Employees are Telecommuting …

Bucking the Yahoo! Trend

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.

The next question is:  What does the telecommuting agreement need to address?  Here is a list of some issues to consider:

  • How do you monitor and manage hours of work?   Unless you fit into one of the exemptions in the
Continue Reading

Bullying and Harassment, or Not

Time to Step Back and Consider

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 of uninformed discussion creating an expectation of many employees that anything they don’t like in the workplace can be turned into a claim with WorkSafeBC.

This is largely the fault of Bill 14  (the legislation that changed section 5.1 of the Workers Compensation Continue Reading