WorkSafeBC – When does an employer / homeowner need to buy coverage?

Here is a tidbit that many homeowners might not be aware of: if you hire a contractor to work on your house, even for a limited time, you may be required to purchase WCB insurance for them.  Individuals or companies need to purchase WCB coverage when they are hiring casual labourers, contractors or other workers for moderate to long periods of time.  This includes:

  • Nannies, companions, or other personal caregivers
  • Domestic workers such as household cleaners
  • Construction or repair workers or contractors
  • Gardeners or landscapers

WorkSafeBC says that you need to buy insurance when:

  • the employee works an average of more than eight hours per week or
  • the job will be completed in longer than 24 total person-hours.

You will only need to buy insurance when the workers do not have their own WCB coverage.  If they work for a contractor, the contractor should buy the insurance.  If they work for a company, the company may have insurance.  To confirm they are covered, you can contact WCB for a clearance letter.  

Paying WCB for employees prevents them from suing you if they are hurt on the job.   A worker injured on the job will not be allowed to sue anyone, and must make a workers compensation claim for disability benefits.  WorkSafeBC covers the worker’s medical and wage-loss costs.  They must follow the WCB rules and entitlements, and you are off the hook.

The cost of coverage is usually minimal, and pales in comparison to the alternative costs.  If you don’t pay premiums to WCB for workers that fall under the requirement, you could not only be subject to a lawsuit by an injured worker, but you could be subject to fines from WCB and for benefits that WCB pays out.  Famously, even the premier of BC got in trouble for not paying attention toWCB requirements.  A worker was killed installing a skylight on Campbell’s sunshine coast home.  Campbell was subjected to fines as the “prime contractor” even though he had thought that the contractor he hired would be overseeing safety.  If even the premier can be caught out in such a manner, anyone can.  It is important to pay close attention, and even give a call to WCB if you are hiring people to do substantial work for you.

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The Pendulum Swings – Trend to Higher Punitive Damages in BC Employment Cases.

British Columbia courts have, as of late, imposed large damage awards in compensation of treatment in the manner of dismissal, characterized as punitive, mental distress, or aggravated damages, even where the quantum of damages from wrongful dismissal based on the Bardal criteria (length of service, age, experience, type of job) is low.  See Kelly v. Norsemont Mining Inc., 2013 BCSC 147.

It seems there is a pendulum that swings back and forth in employment law, regarding damages which arise from poor treatment in the manner of dismissal.  Historically these damages were called “Wallace Damages”.  The Supreme Court of Canada regularly limits these type of damages, and did so a few years ago in Honda v. Keays.  However, limitations created by the Supreme Court of Canada are always worked around by the lower trial courts – trying to achieve fairness on the facts in front of them.  

The Kelly v. Norsemount case is one example, which cites a number of other examples, of BC trial level cases that use large “punitive” or “mental distress” damage awards (in this case $100,000) to give a large award to an employee who would otherwise have very low damages, based simply on the Bardal criteria.  This case, or another like it, will likely make it’s way up the ladder to appeal courts and the Supreme Court of Canada, where such damages will be limited again – and so the pendulum continues to swing.   

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Four Easy Ways to Get Fired

Here are four things that many employees do on a regular basis that could get them fired.  Some may be surprising.

1) Checking Facebook  – an employee is required to spend all of their working time working.  Shocking I know!  Using computers for personal purposes such as checking Facebook, your stock portfolio, or playing minesweeper can be considered time-theft, insubordination or disobedience and can be just cause for dismissal.

2) Questioning the Boss – challenging the boss’s directions, even if their decisions are bone-headed and destined to fail, so long as they aren’t illegal, can be cause for your dismissal.  Insubordination is particularly culpable if it is done in front of other employees, since this can seriously undermine the boss’ ability to control the workforce.  It is the boss’ company and she or he has the right to run it into the ground if they so choose.

3) Updating your Linkedin Profile/Blogging – if you are using linkedin to try to find a new job, or to take away customers for some private gain, that could be considered competing with your employer and acting against their interests.  It will be interesting to see a case make it to the courts over who owns the data in a linkedin account.  In general, employees don’t get to take their contact lists when they leave a company.  Linkedin and other cloud based electronic devices change the game in this regard.  If you blog, do so on your own time or with your employer’s express permission.

4)  Bragging in the Interview – everyone talks their best game in the job interview.  However, you had better be able to put your money where your mouth is.  Courts have held that employees who do not live up to the hype they put out in their job interviews can be terminated for this reason, without notice, in the early stages of the employment.  However, after a certain point the employer will be taken to have accepted any such shortcomings, and will be required to provide the requisite notice.

Canadian case law, such as McKinley v. BC Tel, [2001] 2 S.C.R. 161, states that each case is circumstance-dependant and must be judged in the context of the entire employment relationship.  Discipline imposed by the employer must be proximate to the seriousness of the improper employee behaviour.  Further, in most cases warnings must be given along with corrective measures the employee is to take, before such issues can be a proper basis for just cause.

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Filed under Discipline, Severance, Termination, Termination

Conservative Government Announces Sweeping Changes to Employment Insurance

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The conservative government recently proposed changes to toughen up eligibility for employment insurance.  The suggested changes would expand the type of jobs that an EI recipient would have to accept, or else lose their EI payments.

In an exclusive scoop, this writer got to see an exclusive first draft of the proposed list of jobs someone would be required to accept.  Some included positions were proposed by Mr. Harper himself, but ultimately rejected as too specific. These include caddy, nanny, silver polisher, napkin tucker and toothpaste squeezer. Harper was quoted to say “these are not bad jobs, the real Canadians I talk to every day do these jobs, for me”.

Further, the proposed amendments would require workers to accept jobs that are 75 kilometers from their home.  Conservative MPs have suggested also adding jobs that are underpaid, underground, or underwater.  The government stated that workers cannot expect the jobs to come to them, and must be willing to bring their labour to where the jobs are: thus under the new rules, workers may be required to accept jobs in China.

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Ontario Court overrides Maximum Length of Notice – A Sign of the Times?

A 65 year old Ontario employee, who was fired by Suzuki Canada Ltd., was recently awarded more than two years pay as severance.  The employee was an assistant warehouse supervisor, and was Suzuki’s longest serving employee in Canada, with 36 years of employment.  The traditional legal term for such service is A Hellofa Long Time.  He was terminated as part of “restructuring” (aka layoffs) by Suzuki due to economic woes.   Suzuki low-balled the employee (in hindsight) by offering the employee only 34 weeks salary as severance.

Normally, the courts impose a general rule that wrongful dismissal damages in lieu of notice (not including damages for improper acts in the manner of dismissal) are limited to a 24 month cap.  However, the court found that the employee’s age and other factors made it difficult for him to find a new job.  The court awarded him 26 months, based on his ‘exceptional circumstances’.  The court held that it was reasonable to grant the employee a reasonable amount of time to get over the initial shock of the termination.  He started a job search after three weeks after his termination, on which the court opined “[i]t is frankly remarkable that, in his circumstances, the plaintiff was able to organize himself so quickly”.

This case highlights an increasingly common dilemma for employers: Until recently employers were able to require mandatory retirement for 65 year olds, without notice.  It is a sign of things to come that there will be conflicts between older workers, being pushed to retire by employers who would prefer to fill their positions with younger (and often lower paid) workers.  The challenge is that these employees usually have a long service record, making them expensive to terminate, as in this case.

The practical solution for employers in such cases is pre-planning.  Sometime the economy doesn’t give you that luxury.  Remember, when terminating an employee without cause, an employer does not need to offer a severance package coupled with immediate termination, they must simply give the employee sufficient notice so they have time to find a new job.  As long as the reason for the termination is not the employee’s long-in-the-toothedness, which would be discriminatory, giving a long notice periods will generally fulfill an employers obligation.  Making long range HR plans will allow employers to give lengthy notice periods to employees who they no longer wish to employ, without breaking the bank.

Case citation: Hussain v. Suzuki Canada Ltd. (2011) 209 A.C.W.S. (3d) 101

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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 19th 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 19th Century Magistrates, who enforced the laws, tended to favour employers. Although it did not occur overnight, the 20th 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.

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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.

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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.

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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/ )

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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.

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