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Category Archives: Employee Obligations

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While there may be damages for employee’s lack of resignation notice, there is no reliable substitute for an enforceable restrictive covenant…

Posted in Employee Obligations, Litigation, Termination

A 2016 decision of the BC Court of Appeal is a good reminder to BC employers of the purpose of an employee’s obligation to provide reasonable notice of resignation and, if breached, what an employer can expect to recover.  It also underscores the value of an enforceable restrictive covenant.

Background

In 1997, Peter Walker began working as a manager for his aunt and uncle’s business, Consbec Inc., which was based in Ontario and provided blasting and drilling services to the mining, road building, and construction industries. Consbec’s business was based on submitting winning bids for public and private sector clients … Continue Reading

Reasonable offer prevents litigious complainant from proceeding at BC Human Rights Tribunal

Posted in Discrimination, Employee Obligations, Human Rights, Labour Relations, Litigation

A recent decision of the BC Human Rights Tribunal (“Tribunal”) serves as a useful reminder of the utility of a reasonable settlement offer, which can result in the Tribunal putting an end to complaint proceedings without a hearing. In Sebastian v. Vancouver Coastal Health and others (No. 3), 2017 BCHRT 1, the Vancouver Coastal Health Authority (“VCH”) made a reasonable settlement offer and succeeded in having a human rights complaint filed by a litigious employee dismissed by the Tribunal under section 27(1)(d)(ii) of the Human Rights Code, thereby avoiding a 15-day hearing.

Background

Joseph Sebastian is an employee … Continue Reading

Doing Business in Canada 2016: Read the latest updates to our popular guide

Posted in Employee Obligations, Employer Obligations, Employment Standards, Human Capital, Human Rights

McT_DBiC_Cover_3D_SEPT2016

McCarthy Tétrault’s Doing Business in Canada provides a user-friendly overview of central aspects of the Canadian political and legal systems that are most likely to affect new and established business in Canada. The newest edition reflects legislative changes including:

  • Changes to the Competition Act and Investment Act Canada;
  • and an updated Mergers and Acquisitions chapter including new rules on takeover bids in Canada.

General guidance is included throughout the publication on a broad range of discussions. We also recommend that you seek the advice of one of our lawyers for any specific legal aspects of your proposed investment or activity.… Continue Reading

Have your say: federal employers may soon have to accommodate “millennials”

Posted in Employee Obligations, Employer Obligations, Employment Standards, Human Rights, Legislative Changes

Employment and Social Development Canada recently released a Discussion Paper on Flexible Work Arrangements, signaling potential changes to the Canada Labour Code (“Code”). The Discussion Paper follows on the federal government’s November 2015 mandate to the Minister of Employment, Workforce Development and Labour to amend the Code in order to allow workers in federally regulated sectors to formally request flexible work arrangements from their employers. Employers would then be obliged to respond to such requests, and could only deny requests on “reasonable business grounds”. Changes to the Code would affect some 880,000 employees working for over 11,450 employers in federally 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

Family status quo for British Columbia

Posted in Accommodation, Best Practices, Discrimination, Employee Obligations, Employer Obligations, Family Status, Human Rights, Litigation

Many employers and practitioners of human rights law in British Columbia (like us) have been following the Federal Court of Appeal decision in Canada (Attorney General) v Johnstone, expecting that, as in Alberta and Ontario, the BC Human Rights Tribunal may adopt Johnstone‘s broader federal human rights test for family status discrimination, which would displace the narrower BC test from Health Sciences Association of B.C. v. Campbell River and North Island Transition Society (Campbell River).  Although Johnstone was not raised directly in the decision, the BC Human Rights Tribunal recently declined an invitation to reconsider the Continue Reading

Lessons From The Saanich Spyware Fiasco And New Privacy Laws To Be Aware Of

Posted in Best Practices, Employee Obligations, Intellectual Property, Investigations, Privacy

In our current information age, security over electronic information and protection against unauthorized access is foundational to employers’ businesses. To guard against endlessly multiplying electronic threats, employers must resort to electronic means and, understandably, often resort to broad and comprehensive software to protect their operations. However, the situation involving the District of Saanich earlier this year is a good reminder to all B.C. employers that cyber-protection cannot be used at the expense of employees’ privacy. Moreover, recent amendments to the federal Personal Information Protection and Electronic Documents Act (PIPEDA), which our colleagues posted on here, now make privacy law … Continue Reading

Context is Key: New Trial for Dismissed CIBC Employee

Posted in Discipline, Employee Obligations, Investigations, Litigation, Termination

Previously, we posted here on the case of the CIBC employee who had been dismissed for using her personal account to complete a wire transfer for a client in Ogden v CIBC. The initial trial decided only that Ms. Ogden had been wrongfully dismissed and the heads of damages. The trial judge found that CIBC had conducted a flawed investigation of Ms. Ogden’s conduct and there was a lack of clarity, training and consistency in its policies and procedures.

In a decision handed down April 27, 2015, the BC Court of Appeal ordered a new trial. In particular, the Continue Reading

Delinquency Gone Viral: Addressing Employee Misconduct

Posted in Employee Obligations, Investigations, Just Cause, Termination, Wrongful Dismissal

The appeal (and risk) of social media is the speed of communication and the ease of wide-spread distribution by recipients. We have moved well past Andy Warhol’s 15 minutes of fame to an era of 15 seconds of fame. The pace at which a flippant remark or crass conduct can be recorded, broadcast, go viral, then be analyzed, blogged about and rehashed seems to be increasing exponentially. The risk to employees who are unfortunate enough to be identified or caught up in a social media frenzy appears to be on a similar upward trajectory.

The latest example of the race … Continue Reading

Time Off to Vote in Municipal Elections?

Posted in Employee Obligations, Employment Standards, Labour Relations, Wage and Hours

Are employers obligated to give employees time off to vote in the general local elections this Saturday, November 15?

The short answer is no. Unlike in provincial and federal elections, there is no statutory obligation under the Local Government Act on employers to provide employees with time off from work to vote in local government or municipal elections. The polls for these elections are open from 8am-8pm, and employees may vote in advance polls or even by mail ballot if they have conflicting commitments on the general voting day.

Although there is no legal obligation to provide time off, we … Continue Reading

Employer’s Potential Liability in Class Action for Employee’s Breach of Privacy A Good Reminder For All

Posted in Employee Obligations, Litigation, Privacy

A recent decision of the Ontario Superior Court of Justice highlights the increasing focus on (and potential liability arising from) customers’ and clients’ privacy rights and the importance for employers to properly monitor the activities of their employees. Additionally, while the decision comes from Ontario, which, unlike British Columbia, has endorsed the tort of “intrusion upon seclusion”, it also raises questions about whether British Columbia courts will eventually recognize the tort.

Evans v The Bank of Nova Scotia was a decision regarding the certification of a class action that involved a bank employee who admitted to accessing and stealing personal … Continue Reading

Duty to Accommodate Child Care Obligations? The Federal Court of Appeal Weighs In

The Federal Court of Appeal takes a “broad” approach to family status discrimination – with limitations – in two recent decisions

Posted in Accommodation, Discrimination, Employee Obligations, Family Status, Human Rights

What is an employer’s duty to accommodate an employee’s child care obligations? This topic continues to be a hot one in the workplace, as employers try to balance the need to retain talent and ensure a productive workplace.

Part of the problem is that “family status” is not defined in either the British Columbia Human Rights Code or the Canadian Human Rights Act. As a result, different approaches to what family obligations, if any, are protected by human rights legislation have emerged in various Canadian jurisdictions. As we have discussed in previous posts here and here, the British … Continue Reading

Teck Allowed to Proceed with Random Testing

New development in drug and alcohol testing

Posted in Employee Obligations, Human Rights, Labour Relations, Occupational Health and Safety, Privacy, Unions

Teck Coal will be allowed to continue to implement its random alcohol and drug testing policy while the union pursues its grievance to overturn the policy.  Arbitrator Colin Taylor had previously denied the union an interim order to stop implementation of the policy (see our previous post here) and the BC Labour Relations Board has dismissed the union’s appeal of that decision.  The decision is Teck Coal Limited, BCLRB No. B28/2014.

This means Teck will be allowed to follow its policy for now and the matter will go to arbitration for a decision as to whether the policy … Continue Reading

No Just Cause for Termination

Problems with clarity, training, consistency and investigation

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

A recent decision of the BC Supreme Court went in favour of an employee who was terminated by her employer for alleged conflict of interest and breaches of policy.  The court determined that there was a lack of clarity, training and consistency in its policies and procedures, and a flawed investigation:  Ogden v. CIBC.

Ms. Ogden immigrated to Canada in 2000.  She learned English and earned a business degree from Royal Roads University.  She went to work with CIBC and built up a portfolio of $233 million working with Chinese clients. She was consistently a top performer.

In the … Continue Reading

Pick of the Blogs

Items of Interest for BC Employers

Posted in Employee Obligations, Labour Relations, Litigation, Occupational Health and Safety, Privacy, Unions

Other McCarthy Tétrault blogs regularly touch on issues of importance for BC employers.  Here is a selection from the last month.

Managing the risks of holiday parties.  The office party season can be interesting.  Think about how you can manage the risks.

It’s flu season.   Tips for dealing with sickness in the workplace.

Trespassing on private property?  Maybe not.  Think picketing and leafleting.  A business’s property rights – and the ability to control trespassing – may not be as clear as you think, especially if the business invites the public on its property or operates in a publicly accessible area.… 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

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

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

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

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

Not Constructive Dismissal

Removal of Supervisory Duties Allowed

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 in a number of positions since 1994. Some of the job changes were considered promotions while others were lateral moves, but he agreed to all of them. The last move was to a Business Analyst position when his former department was eliminated. He no … 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