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

Category Archives: Employee Obligations

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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

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

Not Constructive Dismissal

Removal of Supervisory Duties Allowed

By Paige Morrow on Posted in Constructive Dismissal, Employee Obligations, Litigation, Termination, Wrongful Dismissal

A BC employer has successfully defended a claim for constructive dismissal despite taking away supervisory duties and moving the employee from an office to a cubicle.  The Meyers v. Chevron Canada Limited case  is a welcome change from earlier cases we have discussed here (changing a bonus) and here (abusive workplace environment). Meyers worked for Chevron… → 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

Tattoo and Body Piercing Rule Unreasonable

Need to show adverse effect.

By Robb Macpherson and Meaghan McWhinnie on Posted in Discrimination, Employee Obligations, Human Rights, Labour Relations

An Ontario arbitrator has decided an issue of increasing concern to employers everywhere – what can be done about tattoos and body piercings?  The answer:  not much, without objective evidence of an adverse effect on your business. Thanks to our colleagues Meaghan McWhinnie and Robb Macpherson in our Toronto office for writing about this case…. → 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

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

Month in Review

By McCarthy Tétrault LLP on Posted in Accommodation, Age, Benefits, Compensation, Pensions, Damages, Discipline, Discrimination, Employee Obligations, Employment Standards, Family Status, Human Capital, Human Rights, Immigration, Investigations, Just Cause, Labour Relations, Litigation, Murphy's Laws of HR, Privacy, Recruiting, Termination, Unions, US vs.Canadian Employment Law, Wage and Hours, Workers Compensation, Wrongful Dismissal

The bloggers of BC Employer Advisor issued our first Month in Review to summarize our most recent posts. Visit the summary here.  

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

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

Termination Clauses and Mitigation

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

A recent Ontario Court of Appeal decision sounds a warning to employers – if you want to have a set amount of notice or compensation for termination without cause, AND you want to require the former employee to mitigate, you need to say so explicitly in the contract. Goss Power Products had a written contract… → Read More

Just Cause – Dishonesty, Breach of Contract, Good Faith

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

It is always difficult for an employer to prove just cause.  In an earlier post, we discussed performance based just cause.  This post looks at a recent case from British Columbia that found just cause based on dishonesty, breach of contract and breach of the duty of good faith. Ernst was hired as a senior… → Read More

Attendance / Absenteeism Management (Part II – Disability and Medical Information)

By Earl Phillips on Posted in Accommodation, Discrimination, Employee Obligations, Human Rights, Privacy, Termination

In a previous post found here we considered the basic requirements for an Attendance or Absenteeism Management Plan.  This post looks at two key and vexing issues in particular.        1. Disabled employees – an AMP must not: (a) put their employment in jeopardy solely on the basis of absences due to disability, (b)… → Read More

Non-Competition / Non-Solicitation Covenants – Are They Enforceable?

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

A recent case from Ontario has provided a comprehensive and very useful summary of the law on enforceabilty of restrictive covenants, like non-competition and non-solicitation clauses.  The principles apply in all the common law provinces of Canada, including British Columbia. The case is called Martin v. ConCreate USL LP and it can be found at Martin… → Read More

What Makes an Independent Contractor?

By Christopher McHardy on Posted in Employee Obligations, Employment Standards, Wage and Hours

Employee or independent contractor?  It’s an important question with important consequences. The question can arise in different contexts, can be resolved with different tests, and can lead to different results.  But looking at the four common tests will help you determine the right answer. (1) The Control Test The control test has been summarized as… → Read More

Departing Employees Face Consequences

By Jillian N. Humphreys on Posted in Employee Obligations, Litigation

An Ontario employer has recovered almost 20 million dollars  from four former employees. The GasTOPS v. Forsyth case is one that we have mentioned in our client conferences and that we have been watching for a few years.  GasTOPS sued four former senior management employees when they resigned their employment on two weeks notice.  The Trial Judge found that within hours… → Read More