We’ve Come a Long Way

No matter what your political bent or viewpoint, you have to admire this stirring quote by Justice Echlin in the Ontario Superior Court decision in Brito v. Canac Kitchens, 2011 ONSC 1011.

Over the past 200 years, Canadian employment law has evolved dramatically. Workers in the 19^th Century sometimes faced jail for workplace transgressions. In other instances, legalized corporal punishment was administered if servants displeased their masters. In British Columbia, legalized discrimination against Chinese workers was widespread and enshrined in legislation. The 19^th Century Magistrates, who enforced the laws, tended to favour employers. Although it did not occur overnight, the 20^th Century witnessed significant changes in the way in which workers were treated. It may now be fairly and generally asserted that today, in the absence of a voluntary resignation, or serious misconduct on the part of the employee, Canadian employers must dismiss their employees with proper notice or pay in lieu thereof. If the latter, they must “make the employee whole” for the common law period of reasonable notice.

This sums up quite nicely the fundamental importance of legal protection of workers’ rights.

Although the employers that I act for are usually very considerate of these rights, some of the opposing employers I encounter when acting for employees in wrongful dismissal contexts are indifferent to how important employment is to a person’s dignity and sense of worth.  Work makes the man, or woman.  The great sacrifices of brave pioneers who went before us need kept in mind by both sides, who should strive to minimize the impact of terminations on workers and their families.

Clawbies Nominations

So it’s the time of year where we recognize the hard work so many busy professionals put into their public interest blogs, drafted with tired eyes after work.  The old school blawgs like Duhaime, Michael Geist  and Canadian Trade-mark Blog are awesome, but already highly lauded, so they need no further praise from me.  I would like to recommend the reader, have a look at the following great blogs:

1) Rule of Law

One of my practice areas is Estate Law, which is real exciting swashbuckling law in British Columbia (Mommy cut you out of the will?  Never fear – a court can change that!)  I have heard Stanley Rule speak twice – on estate law and on blogging – and he is very knowledgeable.  I have reviewed his synopses on important cases and legal developments on a number of occasions.  Blogs like this are a real service to the legal community – reporting and distilling fresh caselaw.  This blog also is a service to the greater community as it is written in understandable plain english – a talent most of us lose in lawschool (and the same is enduringly and irrevocably abandoned thenceforth).

2) Social Media for Law Firms by Samantha Collier

Samantha’s name pops up everywhere in canadian blawging circles, and her website is a great resource and source of inspiration for blawgers who may need a kick in the butt to get regular posts out during trying times and/or times of trials.

3) BC Heritage Law Blog

These practitioners do so many things right, both in their practice and in their use of technology.  They have gained much notoriety in our community, and I really admire how they are pushing legal practice to be more accessible and reasonable for both lawyers and clients, without sacrificing legal excellence.

Wow, what a west coast bias!  Well if you can find the time to blog between arguing in court, skiing on whistler, and running the seawall – you deserve bonus points in my book.

Tough Times

Tough times are clearly still with us.  This recent CTV article, says that “Canada’s employment rate fell for the second month in a row in November as the economy shed 18,600 jobs. That pushed the jobless rate up one notch to 7.4 per cent.”  Grim news indeed.

We employment lawyers see it on the front lines – employers calling us with necessary termination decisions, employees calling us because they have been terminated, through no fault of their own, because their employers are cash strapped.

The key when making redundancy decisions is to truly make them on the basis of what is best for the company.  Unfortunately, when the hatchet comes out, it is usually wielded to deal with old grievances in the workplace, such as issues between workers.  Employers need to make sure that the decisions can’t be argued to be discriminatory, and take into account the cost to the company of terminating various workers.  On top of avoiding such pitfalls, lawyers can help determine the approximate cost of terminating various employees, based on their individual severance entitlements, and HR professionals should be consulted to do a holistic overview of the total cost to the company associated with terminating various positions.

Perhaps non-legal advice is the best advice in such times – keep your chin up, keep calm and carry on, and never let ‘em see you sweat.

Six Considerations if Terminating Pregnant or Disabled Employees

One of the hardest legal problems employers can face is terminating an employee who is on sick leave or maternity leave.  In some circumstances an employer may justifiably terminate an employee while they are on sick leave.  There are a myriad of different outcomes and considerations, all highly dependent on the circumstances.  Employers in this situation are wise to get some legal advice.  However, the following principals are vital to consider if you are facing terminating an employee before, during or after a maternity, parental or medical leave.

1) Your Reasons Matter 

The BC Human Rights Code prohibits discriminating against an employee on the basis of sex (which includes pregnancy) or disability.  Human Rights laws are separate and distinct from the law of wrongful dismissal.  Normally, an employer can terminate an employee at will, for no reason, as long as the employer treats them fairly in the manner of dismissal and gives them reasonable notice of the termination or pay in lieu of notice.  Just because someone is pregnant or disabled, does not give them immunity from this principle.  However, if the reason the employee is being terminated is the medical issue or the pregnancy itself, termination without cause will likely be discriminatory for purposes of the Human Rights Code.

2) BC Employment Standards Act  – Maternity and Parental Leave 

It is important to follow the provisions of the BC Employment Standards Act when a worker requests maternity or paternity leave. Employment standards legislation in British Columbia creates an exception to the normal termination rules.  Employers cannot terminate an employee because they ask for maternity or parental leave. Employees are entitled to 17 consecutive weeks of maternity leave, beginning 11 weeks before the birth, up to the time of the birth. Parental leave lasts another 35 weeks and can be taken by fathers and adoptive parents, with some restrictions.  The leave is unpaid.

3) Change is Bad 

Employees on maternity or parental leave are entitled to have their position kept, and to be restored to the same working terms, benefits, pay, position and duties. Annual vacation pay and vacation entitlement should be calculated as if there was no leave.  The Act specifically prohibits changing the conditions of employment, without written consent, or moving the employee to a position that is not comparable. Keeping all conditions the same after a lengthy leave can be extremely difficult in dynamic environments, but care should be taken to ensure that this requirement is not violated.  Substantial changes in the terms of employment may also violate the Human Rights Code, and would give an employee the right to claim they were constructively dismissed, and claim severance.

4) Sick is not always a Disability 

If someone is continually sick, and it impacts their employment, that is not protected by the Human Rights Code.  However, terminating someone on such a technicality may be risky, since repeated illnesses may be the result of some underlying clinical problem.  Of course, this does not relieve employers from their common law responsibility to give reasonable notice of termination.  If you are an employee who is continually sick because of some underlying chronic illness, it is important for you to notify your employer, so that you are protected. Also, most employers truly want to be compassionate to their employees, and putting this information in their hands allows (and requires) your employer to accommodate you.  Often the difficulty is that an employee unreasonably refuses to return to work from a leave, and the employer is not convinced the employee is truly disabled.  This can be cause for termination in some instances. However, medical evidence, and lots of clear written correspondence will be necessary to justify a termination on this basis.

5) Timing is everything

Notice given to an employee while they are on leave is generally deemed ineffective until the leave is over.  The notice or severance pay period does not start until the employee returns.  Even if an employer downsizes and a number of employees are terminated at the same time, the notice will not run against the employee on leave until they return.  If you have employees on leave, you should wait until they return before finally determining your staffing requirements and making final HR decisions.

6) Discrimination can be OK. . .  Rarely 

In some cases, employers may be able to terminate a disabled employee, where the disability prevents the employee from performing a bona fide occupational requirement (an absolute must of the job) and the employer has taken all steps to accommodate the individual.  This is not for the faint of heart, nor to be done without consultation with a lawyer and careful consideration and documentation of all possible accommodations.

(Photo copyright Mahalie – http://www.flickr.com/photos/mahalie/ )

Can I be Fired for Drunken Behaviour at a Summer Party? Do Employers have an Obligation to Reprimand Employees for Poor Behaviour?

Both employees and employers have to be careful at the company’s summer party. When the mojitos start flowing, and everyone’s summer whites are getting sweaty on the dance-floor, remember that what you say and do may come back to haunt you. Employers may need to address drunken behaviour on Monday morning.

From an employer’s perspective, outward insubordination, like telling your manager what you really think of him, has to be addressed once the dust has settled.  Employers have to maintain the integrity of the chain of command, even if it is relaxed for one night. Employers who don’t take action risk being accused of condoning the behaviour, and being unable to discipline on those grounds in the future.

Also, relationships between employees may be disrupted by fights or, let’s call them ‘short-term romantic liaisons’. If such acts are public they will cause gossip and disruption and may need to be settled to maintain a productive and positive work environment.  If they take place between a manager and a subordinate, somebody may have to go or be reassigned.   Otherwise, disputes may devolve into accusations of harassment.

If you are an executive, your duty is to make sure your staff have a great and safe time.  Think of yourself as a host, and wait until the party is over to tie one on.  Also, don’t think that just because you have left the original venue,  you are off duty.  In a recent BC case, a few employees left a law firm party and continued on to a subsequent nightclub to dance and drink.  A young lawyer fell and was seriously injured at the nightclub.  Although a court eventually ruled that the injury was not ‘in the course of employment’, it took years of litigation to sort out.  Other cases have held that liability for employers extends to subsequent venues.  For this reason, employers should offer taxi rides home to ensure employees don’t drink and drive.  Just as the liability extends to the next bar, so should a manager’s responsibilities to stay professional and sufficiently sober.  Smart executives will excuse themselves and not continue on for a nightcap.

In recessionary times, employers may be forced to downsize.  Wise employees will avoid giving their employers a reason to choose them as the target.

FAQs: What is the Minimum Wage in British Columbia? What are the Minimum Hours Per Shift in BC? What are the Mandatory Meal Breaks?

How much is Minimum Wage in British Columbia? 

Recently the BC government has raised minimum wage.  Employers must currently pay employees $8.75 per hour.  Minimum wage will be gradually increasing as follows:

November 1, 2011 – $9.50 per hour;

May 1, 2012 – $10.25 per hour.

Minimum wage applies to all employees regardless of how they are paid – hourly, salary, commission or other incentive basis.  There are a number of categories who are excluded (including lawyers).  Salespersons on straight commission must be paid at least minimum wage for all hours worked in a pay period.

Minimum wage rates for live-in home support workers, resident caretakers and farm workers who hand harvest certain fruit and vegetable crops are set at different rates set out in the Employment Standards Regulation.  Employees who serve booze get a lower minimum wage, which doesn’t include tips.  Presumably this is because the hourly wage they make in a shift pales in comparison to their tips.

How many hours are the minimum when an employee shows up for work? 

If an employee is required to work any shift, they must be paid for at least two hours, even they work less than that.  If they are  scheduled for more than eight hours, they must be paid for at least four hours.  There are exceptions where work stops altogether (in which case a minimum of two hours must be paid) or if an employee reports but is unfit for work (in which case they must be paid for time worked).

Gimme a break

Meal breaks are required after five hours.  Coffee Breaks aren’t required at all – but only sadists don’t give coffee breaks – personally I couldn’t survive without my Americano and, in good conscience,  don’t think I could represent an employer who didn’t give coffee breaks

Member of Parliament Severance and Pensions

Now that the federal election has passed, the doors of parliament have revolved and we have tossed out half the members of parliament, comes the resulting bill we may not have considered.  The Canadian Taxpayers Federation has crunched the numbers on MP severance and pensions packages.

Apparently, MP’s get severance of 50% of their salary if they have served less than 6 years (which is eons considering the elections they had to endure in last minority government), a pension if they are over 55 and served longer than 6 years, and both if they served longer than 6 years and are below 55.

The breakdown is here but the highlights are:

• Michael Ignatieff: $116,624 severance, but does not qualify for a pension.
• Ujjal Dosanjh: $40,197 per year – estimated lifetime value of $829,693
• Gilles Duceppe: $140,765 per year – estimated lifetime value of $2,905,486.

Wouldn’t it be nice if we all had pensions like this?  There is of course a lot of criticism, but it’s not exactly a easy to win elections and hold power in Canada.  Considering MPs have a base salary of just over $157,000, it does not seem totally out of line.  I hope the 20-something year old New Democrat MPs have good financial advisors to help them deal with their newfound wealth, but with these kind of pensions perhaps there is no need for saving.

Payroll Errors – Taking Back Overpayments

Mistakes get made in employment situations.  Sometimes, an employee gets paid too much, through an accounting error or by mistaken assumptions.  If you are an employer in this situation, you may ask can I deduct the overpayment from future wages.

The short answer is no.  An employer is not allowed to unilaterally deduct payments from an employees wages.  They are prohibited from doing so under the British Columbia Employment Standards Act.  The matter has been considered a number of times by the courts, and the Court of Appeal has said clearly that an employer cannot withhold wages unilaterally unless there is an express authorization, whether that be by the collective agreement, the employment contract, or by express agreement (which had better be in writing if you want to rely on it).

An employer may still have a right to claim the money back, but has to do so by making a claim in an appropriate court, if the employee won’t agree.  That would be at the Employment Standards Branch, through a grievance (in a union context) or in the Supreme Court.

So double check your employee’s slips, or the slip may be on you.

Termination Tips for Employers

If you are an employer who is dismissing an employee without cause for termination, here are five tips to consider:

1. Be Kind

Keep in mind that being terminated is tough on an employee. It involves a life change, and feelings can get in the way. Do what you can to minimize the impact on them, and keep the emotions to a minimum. The court may award increased damages if it finds the employee was treated unfairly in the termination.

2. Say it in Writing

If you meet with an employee to terminate them, prepare a letter to them setting out the details, go over it with them at the meeting, and leave them with a copy.

3. Calculate Severance Pay

Speak to a lawyer briefly beforehand to determine what the employee is entitled to as severance pay. Unless a written employment contract specifies otherwise, any long-term employee will likely be entitled to substantially more than the amount set out in the Employment Standards Act. The appropriate length of notice depends on a number of factors. A short discussion with a lawyer at
this stage will save you a large amount of legal fees and other expenses down the road.

4. Get a Final Agreement

If you are going to pay out severance over and above the statutory entitlement under the Employment Standards Act, you should get a release of all the employee’s potential claims, along with a signed letter detailing the terms of the termination. Getting a lawyer to help with both documents is money well spent because it will prevent you paying out, only to end up in court later.

5. Spell out the Ground Rules

Make sure you have agreed on essential issues such as:

• whether the severance will be paid in a lump sum or as a salary continuance;
• whether the employee has an obligation to look for work and report those efforts to you;
• who will make tax deductions; and
• what information, client lists, phones, etc. need to be returned.

Once you have handed over the severance, you can’t expect you will be getting any concessions, so make it clear early.

Am I an employee or independent contractor?

While the designation as to whether you are an employee or independent contractor in your employment agreement may be relevant, it isn’t totally determinative.  Courts don’t like to be told what to do, so they can decide whether you are really an independent contractor for themselves.

The main factor the court will look at in determining your employment status is whether you control your own work.  The more you call the shots, such as the time and place and manner in which you work, the more likely it is you will be an independent contractor.  If your work is highly directed by your boss, chances are you are an employee.

There is also a third category in Canada called “dependent contractors”.  This occurs where an independent contractor does the majority of their work for one customer. In some cases, even though the worker may be an independent contractor who dictates all their own work and runs a business that has the chance for profit or loss, courts will imply employer obligations.  Importantly, this can include the obligation to pay reasonable notice when terminating the relationship.