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

Category Archives: Investigations

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New Investigation Requirements, On-The-Spot Financial Penalties and Work-Stop Orders In Wake Of Babine and Lakeland Sawmill Disasters

Posted in Investigations, Legislative Changes, Occupational Health and Safety, Workers Compensation, WorkSafeBC

Before the Babine and Lakeland sawmill disasters in 2012, employers were already under an obligation to investigate any workplace incident involving serious injury or death, major structural failure or collapse, major release of a hazardous substance, a blasting accident that caused personal injury, a dangerous incident involving explosive, a diving accident, any accident or other incident that resulted in injury to a worker requiring medical treatment, and any near misses.

Now, as a result of amendments to the Workers’ Compensation Act (WCA), following Royal Assent to Bill C-9 on May 14, 2015, the manner in which employers carry … 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

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

OH&S Month Part 2: Unsafe Work Refusals, Now Narrower for Federal Workers

Posted in Investigations, Labour Relations, Legislative Changes, Occupational Health and Safety, Unions, Workers Compensation

In every jurisdiction in Canada, employees and employers share the responsibility for ensuring a safe and healthy work environment. In British Columbia, employers are required by the Workers Compensation Act [WCA], to ensure the health and safety of their employees and others working at their work place, which includes investigating safety risks and advising employees of same, and taking steps to eliminate or mitigate identified risks. Likewise, employees have obligations to protect their own and others’ health and safety, including reporting fit to work, wearing protective equipment, following safety procedures, and reporting any safety risks.

One aspect of … Continue Reading

Workplace Drug Dealing Provides After-Acquired Cause for Termination

Employer had just cause based on evidence discovered after termination

Posted in Investigations, Just Cause, Termination, Wrongful Dismissal

In most cases, employees who commit misconduct will face the consequences of their actions during their employment, in the form of discipline or even termination for just cause. But, what if the employer only learns of an employee’s misconduct after the employee is dismissed without cause? What recourse does the employer have?

The British Columbia Court of Appeal’s ruling in Van den Boogaard v. Vancouver Pile Driving Ltd affirms that employers can rely on misconduct discovered after an employee’s dismissal to establish “after-acquired” just cause.

Mr. Van den Boogaard was a project manager for Vancouver Pile Driving, a marine contracting … 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

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

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

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

“Workplace Investigations – Part 3”

Posted in Discipline, Discrimination, Human Rights, Investigations, Just Cause, Termination, Workers Compensation, Wrongful Dismissal

In earlier posts, here and here, we discussed some legal issues that arise in workplace investigations. In this post, we will discuss some of the privacy issues that can arise.

The investigator is often asked by nervous employees whether their identity and the information they give will be kept confidential. This cannot be guaranteed.  Employees being interviewed should be made to understand that the information they give may be disclosed, in whole or in part, to other parties in an investigation as necessary.

It may not be necessary to share the identity of witnesses with other parties when, for … Continue Reading

Workplace Investigations – Part 2

Posted in Damages, Discipline, Human Rights, Investigations, Just Cause, Termination, Workers Compensation, Wrongful Dismissal

In an earlier post, we discussed when employers may wish to conduct workplace investigations.  In this post we’ll discuss who should conduct the investigation.

Being lawyers, we usually have a quick answer to this:  legal counsel. We recognize, however, that clients don’t have unlimited funds.  So practically speaking, each situation will have to be assessed on its own facts.

In situations where a simple fact finding determination and assessment of credibility are all that is needed, the skilled manager can suffice, with counsel in the background to point them in the right direction and give legal advice based on any … Continue Reading

Workplace Investigations – Part 1

Posted in Damages, Investigations, Just Cause, Termination, Wrongful Dismissal

With the complexity of workplace law and issues, employers are subject to an increasing number of workplace obligations.  When a workplace incident arises it’s often required, or at least advisable, that an employer conduct a prompt and thorough investigation.

In this and subsequent posts, we will review some key legal issues that arise in conducting or directing a workplace investigation, including privacy, confidentiality, and the issue of legal privilege.

We will also discuss who should conduct the investigation, including when to use counsel, and when investigating counsel should be different than an employer’s usual employment counsel.

Finally, we’ll discuss some … Continue Reading

Month in Review

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.

 … Continue Reading

Responding to ESA Complaints

Posted in Employment Standards, Investigations

An employer should respond promptly, fully and carefully when it receives communications regarding possible violations of the Employment Standards Act (British Columbia).

In most cases, the complainant must use the “Self Help” process to try to resolve the matter directly with the employer. That process starts with a Request for Payment to the employer. The Request should not be ignored. The process gives the employer a chance to resolve problems without involvement of the Employment Standards Branch.

If the matter is not resolved, a complaint may be filed, and an officer of the Branch will contact the employer to investigate. … Continue Reading

Investigations and Terminations That Cost – Part II

Posted in Investigations, Litigation, Termination, Wrongful Dismissal

Last week we looked at the flawed investigation leading to the termination of a long service employee.

This week, we look at the problems with the termination process.

Stephanie Vernon spent her entire working life – 30 years from the age of 19 – working for the Liquor Distribution Branch. A particularly sensitive employee made a complaint about Vernon. The employer decided to terminate after an investigation.

The employer told Vernon that her conduct was shameful and an embarrassment to the Branch. They gave her a short period of time to consider offering her resignation instead of being fired. … Continue Reading

Investigations and Terminations That Cost – Part I

Posted in Investigations, Litigation, Termination, Wrongful Dismissal

A B.C. employer has recently been hit with a significant damage award related to the termination of a long service employee. The court found two major problems: a flawed investigation and an insensitive termination.

This week, we look at the investigation.

Stephanie Vernon spent her entire working life – 30 years from the age of 19 – working for the Liquor Distribution Branch.  She became a manager, known for her aggressive style and demanding ways, but her performance reviews were exemplary.  There had never been a complaint against her, she had never received any warning about her management style, and … Continue Reading