1. Fundamentals of Employment Contracts: Offer and ...



1. Fundamentals of Employment Contracts: Offer and Acceptance, Consideration and CertaintyContract FundamentalsFreedom of ContractWhile freedom of contract allows employer/employee to agree to anything, you can’t contract out of the HRC or the ESA minimumsCan’t agree to a term that violates the human rights protections.Can’t contract out of the minimum employment standards but can contract for better than ESA minimumsCannot Contract Out of ESA MinimumsMachtingerIssue: Can an employer contract for less than the minimum notice? What notice should they get – CL or ESA minimum?Ratio: If the term falls below the ESA minimum, it’s a nullity, and employee is back to CL reasonable notice. Also, as per Ladner Downs, it’s whether the provision would ever, at any point even in the future, fall below the ESA minimum, not just at time of actual termination.A term in an employment K that provides less notice than the legislated provincial minimum becomes null and void (per s. 3&4 ESA). Consistent with policy reasons, court will imply CL reasonable notice RN is based on 4 factors from Bardal (listed below)ESA will always be interpreted in an employee-friendly way – MachtingerAcceptance Once employee accepts, they agree to anything up to that pointAfter acceptance too late for ER to come back and say there are other terms or conditionsConsideration/Adding New TermsConsideration passes upon acceptanceAn employer cannot add new terms / modify an employment contract without new considerationContinued employment without more is not consideration – WatsonFundamental Changes to ContractIn BC, an employer can give notice of a fundamental change and as long as there is sufficient notice the change is enforceable Consideration would not be neededSufficient notice = amount employee would be entitled to for reasonable notice of terminationIf there is insufficient notice then it is constructive dismissal – seen in Kussman AT&T reduced his base salary from $105k to $93k (12% more than 10%!) / They took away his administrative help / Another salesperson was hired and took away his business these factors culminate to be constructive dismissal due to fundamental change without adequate noticeIn Ontario employer must advise that non-acceptance of fundamental change after notice period will amount to termination termination (see Wronko). If employee doesn’t agree to fundamental change and employer doesn’t advise that this amounts to termination then employee will be seen to have acquiesced to the employee’s position Here, Wronko did not agree to having his severance cut back from two years to 30 weeks. After two years he was told he was now bound by the 30 weeks. Wronko argues that this amounted to termination, sues for wrongful dismissal. Held: where an EE has objected when notice of a change is given, the ER must say the notice is for termination. As there was no notice of termination here, the employer must be seen to have accepted Wronko’s repudiation of the new terms so the old contract continues. Entitled to 2 years.Implied Terms of Employment ContractCourts can fill in gaps in an employment contract Implied terms will reflect the parties intentions at the time of contractingIncludes:(1) Reasonable notice of termination – see Machtinger (2) Duty to act honestlyReasonable Notice Of TerminationIf there is an employment relationship:The employee cannot be fired unless the employee provides cause for the termination (behaves badly) this allows for immediate dismissalBut if there is no cause for termination then there must be reasonable noticeThis can be rebutted by an express term in the employment contractA term in an employment K that provides less notice than the legislated provincial minimum becomes null and void (s. 4 of BC ESA) – see Machtinger aboveReasonable Notice Is Based On:BardalEE’s age (older, more notice)Length of their Em with this ER (longer, more notice)Based on nature of their position (more sophisticated or responsible, more notice) Availability of alternative Em (not many jobs available, more notice)Duty to Act HonestlySome dishonesty is ok. You don’t need to be absolutely honest all the time. Courts will take a contextual approach. – Mckinley So it appears that if you look at all the circumstances, an employee might not be able to be dismissed for a single act of dishonesty if it is trifling etc.2. Employers’ and Employees’ Obligations, Including FiduciariesThe Common Law Obligations of the EmployeeImplied Contractual Employee ObligationsOverarching obligation to advance employer’s business interestsDuty to follow lawful directionsDuty to report to work and be punctualDuty to be honestDrunkenness, Sexual Harassment and Moral Impropriety Duty to Perform Duties CompetentlyDuty Not to Exploit the Employer’s InterestsDuty of confidentialityDuty to give reasonable notice of termination1) Overarching Obligation to Advance the Employer’s InterestsEmployee must:Act in best interests of employer at all times, duty of loyaltyAct in furtherance of the organization’s business goalsGive undivided loyaltyCan extend to off-duty hours as well if the conduct is bad enough, especially if it could harm reputation of employer with clients/customers (seen in Simpson, where sexual harassment occurred outside work) SS flip side to Simpson. Judge said employee friendship with client was off-duty, not part of work. Allowing client into private life did not compromise professional responsibilities, cannot terminate2) Duty to Follow Lawful DirectionsInsubordination can be cause for summary dismissal if just cause requirements met The directions must be:Reasonable and clearWithin the scope of employment Lawful (criminally, can’t be tortious, or breaches of employment standards/rights, health and safety law etc.)3) Duty to Report to Work and Be PunctualAbsenteeism and lateness is badAbsences due to religious holidays and incarceration excuse the absence.Most often contentious when human rights issues like long term illness or disability are present.4) Duty to Be HonestCannot be deceitful, fraudulent or dishonestContextual analysis – some dishonesty is ok, some isn’t – McKinleyApplies from the commencement of employment forward.Don’t have to volunteer information about your past, but if asked, must answer truthfully.Obligation to disclose a relationship with a subordinateDishonesty may justify dismissal even if there is no economic harm because it can shatter the psychological bond of loyalty and trust between the parties even one instance can be enoughNot automatic though must still be proportional, there may be mitigating circumstancesCan justify termination on 2 basis:The initial act of dishonestyDishonesty in a meeting to discuss the initial act of dishonesty.5) Drunkenness / Sexual Harassment / Moral ImproprietyMust report for work in a sufficiently sober condition to perform job effectively and without endangering the safety of others applies to alcohol and drugsAddiction and alcoholism are commonly protected disabilities employer may have to accommodate up to the point of undue hardshipSexual harassment grounds for summary dismissal Especially if perpetrator is supervisor or power balance exists (Simpson)This can extend outside of work (Simpson)Moral impropriety based on likelihood that employer would suffer tangible economic harm if the general public ceased doing business with firm because of employee’s actions6) Duty to Perform Duties CompetentlyVery high standard for the employer Employer must show:Clear standards were setEmployee failed to achieve themNotice of inadequacies provided (letters or meetings, etc.)Time given to correct the inadequaciesMay also have to show training was provided and that the performance didn’t improve.Can raise human rights issues with disabilities.7) Duty Not to Exploit the Employer’s InterestsCan’t take steps to benefit the employee to the employers’ detrimentGifts, bribes, secret profits, peting by working with another employer can be a problemBut, you can plan to compete, start setting up etc. while still working for the employer but can’t go into the marketplace8) Duty of ConfidentialityEmployees have to maintain confidential information of their employersInformation not available to the publicSomething that requires removing information is confidentialExists Post-Employment as wellAnything you can remember in your head isn’t confidential9) Duty to Give Reasonable Notice of ResignationNotice of resignation is enough time to find a suitable replacement1-2 weeks usuallyObligations of Fiduciary EmployeesApplies To:Typically top management / higher upsLook for employees with a heightened duty of loyalty to the employerLook beyond the job description to the practical aspects of the employees responsibilities Applies even after resigning for reasonable period – CanAero Test For Fiduciary In Employee Context:Frame v SmithEmployee has broad discretion and can exercise it unilaterallyCreating binding contractsMonetary decision makingOverall management of companyEmployer is particularly vulnerable / at mercy of fiduciaryDuties of FiduciariesDuty of loyalty and good faith seen in below duties – CanAero Can’t quit to use a business opportunity they got through their position w/ the companyCan’t exploit a business opportunity they became aware of through employment quit and then take opportunity for themselves seen in CanAeroCanAero preparing bid for mapping contract. Senior officers (not directors) working on contract for CanAero felt they couldn’t win bid, resigned, formed their own competing company and won the bid using the info from previous employment with CanAero. It didn’t matter how similar the proposals were, it was a proposal for the same opportunity.Have to disclose any knowledge they have that would affect the employer’s businessEngaging in conduct themselves or finding out about some other employeeMust disclose setting up own business opportunityCan’t compete for a reasonable time after the employment has ceased.No formula for reasonable time Typically 6 months. Maybe longerEmployer must have enough time to protect themselves against the vulnerability this causes and to consolidate their relationships with clientsSeen in CanAeroCan’t entice other employees to resign and join themRemediesInjunctionsDamages for lost profitsNo requirement of proof that employer would have gotten a contract or evidence of profits that would have been made – CanAero Factors to Be Considered in Assessing Potential BreachCanAeroPosition or office held The nature of the corporate opportunity / Its ripeness / Its specificity and the director's or managerial officer's relation to it The amount of knowledge possessed, the circumstances in which it was obtained and whether it was special or privateThe factor of time in the continuation of fiduciary duty where the alleged breach occurs after termination of the relationship with the company The circumstances under which the relationship was terminated, that is whether by retirement or resignation or dischargeEmployer ObligationsEmployer ObligationsReasonable notice of termination if there is no causeDuty of good faith when terminatingPay employeesDon’t have to pay interns because there is no obligation to pay at common lawProvide workConstructive dismissal to send someone home for the day (or longer), even with payImportant in a narrow but often litigated area – LayoffsLayoffs are a constructive dismissal at common law and a breach of the employment contract – unilaterally failing to provide work.Also have to provide the work that was agreed toConstructive dismissal to hire someone as a lawyer and get them to work as a janitorDuty to ensure there is no harassment in the workplaceEmployer must take all reasonable steps to eliminate any harassment that they know or ought to know existsE.g. Malicious changes in work conditions/hours, Bad job reviews, verbal/physical abuseHarassment can amount to constructive dismissalSulz – Female employee worked for the RCMP. New detachment commander (Smith) comes in and makes her life tough. After 2 pregnancies and medical leave, things spin out of control. Malicious stories are spread about her and commander yells at her on a number of occasions. She develops a major depressive disorder and will never work again. Harassment constitutes constructive dismissal. Here, statutory limits had passed for constructive dismissal so action brought in tort for negligence. Duty of care owed and breached. Harassment was proximate cause for depression.Duty to provide a safe workplaceMust take reasonable steps to make the workplace reasonably safe – may involve monitoring and supervising – seen in Jacobson The duty to keep a workplace safe goes beyond simply watching for impairment, the employer must take positive steps to ensure there is no danger – Jacobson v NikeFacts: 19 year old warehouseman is told to drive to work because they have to go to BC Place to set up a display. Arrived at 8:30am, worked 16 hours. At 7pm J was given a beer by his supervisor. At 8:30pm they are given dinner and 3 dozen beer are brought in. They worked till 11:30pm playing drinking games while they worked; kept this secret from the supervisor. No one monitored how much they drank. J had 8 beers, went to 2 bars afterwards and only had a couple more. Drove home, crashed in a ditch and became a quad.Held: Nike argued they could not have reasonably foreseen the danger but court found they breached by essentially making drinking and driving part of the work conditions that dayNo attempts to monitor or superviseThey had a duty to take positive steps to prevent him from drivingNot Duties/ObligationsNo duty of good faith during employment (only during dismissal)No duty of fairnessExcept in termination (Wallace Case) – triggered when the relationship turns towards terminationNo duty to provide sick payMust be an express contractual termContract Law ObligationsGood Faith Contractual PerformanceBhasinMust perform contractual duties honestly and reasonably and not capriciously or arbitrarilyContracting party should have appropriate regard to the legitimate contractual interests of the contracting partner“Appropriate regard” for the other party’s interestsWill vary depending on the context of the contractual relationshipDoes not require acting to serve those interests in all cases ? It merely requires that a party not seek to undermine those interests in bad faithDuty of Honest Performance in ContractsRequires the parties to be honest with each other in relation to the performance of their contractual obligations – Bhasin Cannot lie or mislead Parties must not lie or otherwise knowingly mislead each other about matters directly linked to the performance of the contract – BhasinHere, Can-Am did not perform its contract honestly and Bhasin essentially had his business turned over to Hrynew. Can-Am was liable for damages calculated on the basis of what Bhasin’s economic position would have been had Can-Am fulfilled its duty.How does McKinley factor in now? No more contextual approach?3. Employment Contracts vs. Independent contracts and Unionized vs. Non-Unionized EmploymentEmployee vs. Independent ContractorWhy is Distinction Necessary?No vicarious liability for acts of contractorsESA standards do not apply to contractors They are governed by the contractAvailability of action for wrongful dismissalAssessment of taxesNon-Exhaustive Factors to Determine EE vs. ICThere is no one conclusive test to determine EE vs. IC. Must look at total relationship using non-exhaustive factors – SagazMust look at: (Lord Wright’s 4-Fold Test discussed in Sagaz)Level of control over worker’s activitiesFor employer/employee employer controls worker and manner in which work performed. Who what when etc. Also controls remuneration.Employer/IC IC determines these things and determines his feeOwnership of toolsGenerally must be a substantial investment (vehicle/equipment), not just a few toolsWhether there’s a chance of profitMust be substantial investment. Remuneration “by the piece” or on commission would not countWhether there is a risk of financial loss Employee has no risk, IC could loseOrganization test (discussed in Sagaz)IC not integrated into business, more peripheral workEmployee more integral part of businessAdditionally: (from book)Regularity of employmentWorking for multiple employers may indicate IC (although employee could have multiple jobs). Working for just one may indicate employee.Right to delegate performance of the workEmployee will perform work personally, IC may delegateLegal status of workerIf worker has incorporated and performs contract under corporate name Likely IC Public imageLook like employee? Wear uniform etc.?Formal contractual descriptions of the nature of the relationshipLittle weight given to terms used in contract because this is self-serving. Court will look at economic realitiesBring in his sheet with more factors!CL EmUnionized Labourfocus is on independence and flexibility for ER and EE Unionized labour: focus is on consistency and security primarily for EE’sWhen a workforce unionizes, EE’s give up some control, independence and flexibility but they get a lot of security, protection and consistency for thatEM is fundamentally Common Law with statuteLabour is fundamentally from statuteArises from labour relations jurisdiction In CL world, all relationships are individualWho is subject to unionized relationship?An EE in a bargaining unit is subject to a labour relations code whether they want to be or notThey become certified under legislation through some statutory processMajority governs in that bargaining unitEstablishment of Contracts for Em and TermsEEs bargain contracts and terms with ER, upfront or further into the relationship. They have input.Unionized employees don’t negotiate or have input. They’re subject to collective agreements – one big K to represent bargaining unit. Union takes into account age of members, what they want and bargains w/ ER on their behalf. Union members don’t have individual relationship w/ ER.TerminationER’s can always terminate EE’s. If there isn’t cause then they have to provide RN/payment in lieu. Can’t terminate if it violates human rights code.ER can’t terminate EE on RN. Can only terminate EE if there’s cause (misconduct) or perhaps if the work is simply gone (there isn’t any more work to do)Progressive Discipline – steps ER moves toward to get to causeFor performance issues have to give them warnings and opportunity before you terminate them.For misconduct don’t necessarily have to give warningsProgressive discipline is fundamental. Only in rare scenario can EE be terminated without progressive discipline. Usually verbal, then written warning, then short suspension, then longer suspension, then you can terminate. ER has to prove along the way that misconduct is still there all along, within sunset clause (usually 2yrs). Gives EE a lot of protection. Encourages fairness and consistency in discipline.SeniorityNot very important in non-unionized world. ER’s can ignore it, except for notice entitlement. ER’s make decisions based on merit, education and ability, or based on arbitrary distinctions.Very important in union world (layoffs, shifts, promotions, etc.)Work StoppagesEE’s can get fired if they don’t come to work.EEs can strike/fail to come to work. Labour code says as long as bunch of requirements are met (collective bargaining agreement has expired, etc.), then union is entitled to direct members to not come to work.Right to strike is now Charter protectedDispute ResolutionEE can have a hard time raising an issue with ER. Can go to ES branch for some complaints, or court/tribunal but they need a lawyer.More powerful process for EEs here: grievance process – can take complaints to ER. It allows smaller issues to get dealt with. Relief is available for some things at Labour Relations Board. EE has strength of union behind them as long as union is satisfied they ought to be resolved.Union has power over arbitration/settling though, even if you don’t like itPayment of DuesUnionized EEs pay dues to the union (2-4% of annual income). Vicarious Liability What is it?Employer is liable for tortious conduct of employees (not IC’s) if it is done in the course of employmentTest for Vicarious LiabilityEmployer is vicariously liable if the misconduct was: (Bazley – endorses Salmand test).Expressly authorized by the employer; ORActs so connected with authorized acts that they may be regarded as modes (albeit improper modes) of doing an authorized act. Must be closely and materially relatedCoincidence Incidental connection through time and place not enoughHere, pedophile hired by non-profit foundation abused children. Foundation was vicariously liable.Bazley acted like a parent, had power, there was an element of intimacy and the employer wanted these things to happen, tried to foster it.Test for Whether Unauthorized Acts = So ConnectedFor second branch of Salmand test: (Bazley)Precedent Court should first determine whether there are precedents which unambiguously determine on which side of the line between VL and no liability the case falls. Policy Analysis If prior cases do not clearly suggest a solution, the next step is to determine whether VL should be imposed in light of the broader policy rationales behind strict liabilityPolicy ConsiderationsBazley2 policy considerations:Just and practical remedy he who introduces a risk should bear the responsibility if it is realizedDeterrence employer is in a better position to reduce the risk of harm. Must go beyond merely not being negligentSufficiency of ConnectionBazleyConsider in conjunction with the policy considerationsFactors for connection between risk created and the wrong complained of:the opportunity that the enterprise afford the EE to abuse his/her powerthe extent to which the wrongful act may have furthered the ER’s aimsthe extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the ER’s enterprisethe extent of power conferred on the employee in relation to the victimthe vulnerability of potential victims to the wrongful exercise of the EE’s powerNon-ProfitsRequire stronger connection Vicarious liability is a no-fault mechanism to spread the loss – a search for deep pockets Non-profits have no deep pockets so require a stronger connection between the conduct and the activities of the employer and corresponding employee duties – JacobiNon-profit cannot spread cost by raising prices or internalizing costsEmployer is in a better position by being able to get insurance Employees cannot allocate the riskCriminal Offence?The deterrence policy aim is not as big if the misconduct is already a criminal offence – JacobiEmployer cannot deter further than thisWas Vicariously LiableBazleyThe Foundation was VL for the sexual misconduct of Curry. The opportunity for intimate private control and the parental relationship and power required by the terms of Em created the special environment that nurtured and brought to fruition Curry’s sexual abuse. The ER’s enterprise created and fostered the risk that led to the ultimate harm. The abuse was not a mere accident of time and place, but the product of the special relationship of intimacy and respect the ER fostered, as well as the special opportunities for exploitation of that relationship it furnished. [Job had a great risk for child sex abuse]. Fairness and the need for deterrence in this critical area of human conduct – the care of vulnerable children – suggest that as between the Foundation that created and managed the risk and the innocent victim, the Foundation should bear the loss.Too Remote – Not Vicariously LiableJacobiBoys and girls club pedophile. Different outcome from Bazley based on the facts.Club offered recreation in public setting. Not a residential care facility like in BazleyThe employer provided an opportunity to meet children, but most organizations dealing with children doGriffiths had no job-created authority to insinuate himself into the intimate lives of these childrenDidn’t provide much opportunity to be alone or in any intimate situation with the kids (this was prohibited)The employer allowed the employee to develop a rapport, but that is also what happens in any organization with childrenIts emphasis was on developing (horizontal) relationships among the members, not (vertical) relationships to persons in authorityAssaults happened outside working hoursGriffith had to entice the children to his home in order to commit assault Mother was also involved; she authorized the kids to go over there There was someone else there to make a good decision for the child.Relevant FactorsOther relevant factors: (Jacobi)the opportunity the enterprise afforded the employee to abuse his power,the extent to which the wrongful acts of the employee aided the employer’s aims and gave a benefit, intimacy inherent in employer’s enterprise, the power conferred on employee in relation to victim, and victim’s vulnerability4. Employment StandardsESA Case LawCannot Contract for Less than MinimumIf the term falls below the ESA minimum, it’s a nullity, and employee is back to CL reasonable notice – Machtinger If term could violate legislated minimums in the future it is void from the beginning, regardless of whether it meets the minimums at the time of termination – Shore v Ladner DownsExpansion of Machtinger “It is neither reasonable nor practical to leave the individual employee in the position of having to keep an eye on the relationship between the statutory minimum and the contractual term” [to see if the term is still valid] – Shore v Ladner DownsCan contract for better than ESA minimumsEE Friendly InterpretationESA will always be interpreted in an employee-friendly way – MachtingerThe Act should be given a broad and purposive interpretation, as it is remedial legislation aimed at protecting employees who are in an unequal bargaining position – Shore v Ladner DownsNo CL Cause of ActionESA provides a complete and effective administrative structure for granting and enforcing rights to employees There is no intention that such rights could be enforced in a civil action – Macaraeg Presumption that statutory remedies are limited to the statutory regimeEmployment Standards ActApplies Tos.3All employees other than those excluded by regulationNo distinction between part time and full time“Employee”s.1(1)A person (including a deceased person), receiving or entitled to wages for work performed for another,A person an ER allows, directly or indirectly, to perform work normally performed by an EE, (e.g. internship)A person being trained by an ER for the employer's business,A person on leave from an ER, andA person who has a right of recall;ExceptionsFederally regulated employers governed by the Canada Labour CodeE.g. Banks, broadcasting, rail transportation, postal contractors Specific jobs / professions – s.31 of Reg.Professionals such as accountants, engineers, lawyers, doctors, architects, nurses and dentistsStudents engaged in work study programsUnionized employees – s.3If a collective agreement deals with any of the following, then corresponding provisions in the Act do not apply: Hours of work or overtime, Statutory holidays, Annual Vacation or Vacation Pay, Seniority retention, recall, termination of employment or layoffSome provisions of the Act apply regardless of whether the matter is addressed in a collective agreement:Payment of wages; Special clothing; Record Keeping; Group terminations; Leaves and jury dutyManagers – s.34(f) of Reg.Are exempt from the hours of work, overtime and statutory holiday provisions Narrow definition for manager calling someone a manager isn’t determinative authority over hiring, firing, scheduling, overtime, give leaves, training, order supplies inventory etc.“Manager” is defined as:A person whose principal responsibilities consist of supervising and/or directing human or other resourcesA person employed in an executive capacityIndependent contractors:Not considered to be employeesUse tests to determineWagesMinimum Wages.16Must pay minimum wageGeneral minimum wage – $10.25/hr effective May 1, 2012Special minimum wage rates in the Regulation liquor servers / live-in home support workers / resident caretakers / farm workersPaydayss.17Must be paid for pay period at least semimonthly Must be paid within 8 days after the end of the pay periodIf Employment TerminatedMust pay within 48 hrs if employer terminatesMust pay within 6 days if employee terminatesPayment Methodss.20Must be Canadian currencyCash, cheque, draft or money order acceptable Direct deposit only if authorized Payment Timess.20At-least Semi-monthly:No more than 16 days between pay daysNo more than eight days after pay periodDeductions That Are Not Alloweds.21ER cannot directly or indirectly withhold wagesClawbacks for overpaymentsDeducting wages to recover an EE’s cash handling mistake or till shortages Implementing a policy that requires an EE to pay for damage to property or inventoryERs cannot require EEs to contribute towards the costs of business (except under the Regulation)What is a “cost of business”?Transaction fees on credit card charges? NOTools provided by an EE? Can require EE to come w/ a tool but the cost of running it is ER’sSpeeding tickets? EE responsibleDeductions That Are Alloweds.21Where permitted by statute (e.g. EI, CPP, tax deductions)Pursuant to a garnishing orderWhere authorized under a wage assignmentWage AssignmentsAssignment must be in writing – s.22Amount must be paid according to assignment or within one month of being deducted, whichever is sooner – s.23Employee must provide written notice to employer and assignee in order to cancel assignment – s.24Special Clothings.25If employer requires special clothing, employer must provide it without chargeWage Statementss.27 A wage statement must be provided on each pay day unless the statement would be the same as in the past pay periodMust list certain info: rate of pay, hours worked, deductions, overtime rate, gross/net wagesPayroll Recordss.28Payroll records must be kept for all EEs during their Em, and for two years after Records must be kept in English and maintained at principal place of businessMust have info on employee’s personal info, date began work, wage rate, hours worked/day, wages, deductions, benefits etc. Hours of Work **Excludes Managers**Meal Breakss.32EEs must receive a 30 minute meal break at least once every 5 hoursER has to show EEs take breaksSaying EEs self-manage their breaks provides no recordUnpaid, unless EE is required to work or to be available for work during the breakNo requirement for short-breaks in ActSplit Shiftss.33Split shifts are shifts separated by a number of hours offExample: Restaurant EE begins shift at noon, works until 2:00 and then has two hours off before being required to return for balance of their shiftSplit shift must be completed within 12 hours of startIn the example above, the EE must finish their shift by midnight at the latestMinimum Daily Hourss.34EEs not scheduled to work / scheduled for less than eight hours Entitled to minimum 2 hours pay, whether or not work is performedEmployees scheduled to work eight or more hours Entitled to minimum 4 hours pay, whether or not work is performedIf work is suspended for reasons beyond ER’s control EE entitled to greater of 2 hours or actual time workedExceptions Minimum pay not required if:EE is unfit to work EE fails to comply with Workers Compensation ActOvertime **Excludes Managers**Entitlements.35Overtime rates apply where ER requires or directly or indirectly allows EE to work More than 8 hours/dayMore than 40 hours/wkER has to make concrete efforts to send people home or will be liable to pay overtimeIncludes salaried EEsWork may include:Travel required as part of the jobTime when an EE is on call at a designated locationTime required to attend conferences, business meetings or trainingTo Avoid Overtime Disputes ER Should:Keep accurate records of hours workedIf EEs are working overtime without authorization, advise them to stopImplement a policy or procedure for approving overtime before it is workedHours Free From Works.36EE entitled to at least 32 consecutive hours free from work each week, or pay 1.5x the regular wage rate for time worked during the 32 hour periodEmployee is also entitled to have eight hours off between shifts unless required to work because of an emergencyRatess.40Daily Overtime0-8 hours – regular rate8-12 hours - 1.5 x regular rate12 hours plus – 2 x regular rateWeekly OvertimeAll time in excess of 40 hours/wk must be paid at 1.5 x regular wage rateOnly the first eight hours worked each day are used to calculate total hours for weekly overtimeNo Excessive Hourss.39ESA does not proscribe maximum hours, but ER must not require, or directly or indirectly allow EEs to work excessive hours or hours detrimental to an employee’s health and safetyOvertime Bankss.42EE may request (must be in writing) ER to establish overtime bankER required to credit overtime wages to the time bank instead of paying them out under the ActPayoutss.42EE may request:Payment of all or part of wages credited to the time bankTime off with pay in lieu of being paid wages in the time bankClosure of the time bankER must pay amount credited to time bankER may close the time bank on one month’s noticePay all wages credited to the time bank within 6 months; and/orAllow EE to use the wages credited in the time bank to take time off with pay;Averaging Agreementss.37ERs can reduce overtime liability through averaging agreementsUseful in environments where flexible work arrangements commonly existExamples (One week agreement, EE might work four on (10hr days), three off. Two week agreement EE might work 5 on in the 1st week, and three on in the 2nd week). Overtime and hours free from work – established through agreement:Must be in writing, signed by EE and ER, specify number of weeks, specify schedule, give start dateCannot provide for an average of more than 40 hrs/week>12 hrs a day still gets double timeAverage > 40 hrs/week still gets 1.5x payStat Holidays **Excludes Managers**Stat Holidayss.1Act lists the following statutory holidays: New Year’s day / BC Family Day / Good Friday / Victoria Day / Canada Day / BC Day / Labour Day / Thanksgiving Day / Remembrance Day / Christmas Day / Any other day prescribed by regulation (none at present)Entitlements.44Entitled to statutory holiday pay if: Employed for at least 30 calendar daysWorked or earned wages for at least 15 of 30 calendar days before holiday Employees governed by an averaging agreement eligible if they have worked any time in the previous 30 calendar days before holidayPay – Calculations.45If given day off, employee is paid an amount equal to an average day’s work Amount Paid ÷ Days WorkedAmount Paid includes total wages for the 30 day period, including paid vacation time if taken, but excludes overtimeDays Worked is the number of days the employee worked or earned wages within the 30 calendar day period, including any vacation days taken in the 30 calendar day period.Pay if EE Workings.46Employees who work statutory holidays are entitled to be paid:1.5x the employee ’s regular wage for the time worked up to 12 hours; 2x the employee’s regular wage for any time worked over 12 hours; andAn “average day’s pay”Pay – Substitutionss.48Act permits employers to substitute another day for a statutory holiday Statutory holiday provisions will apply to that day as if it were a statutory holidayEmployee (or a majority of employees) must agree to substitutionEmployer must retain record of agreement for two yearsVacation Time and Vacation PayVacation Times.57Act provides amount of time off an employee must receive each year:12 consecutive months = 2 wks/yr. (Has to be taken in year in which they’re earned)5 consecutive years= 3 wks/yr. (Can have leaves within this time)ER decides when EE is entitled to take vacation time(2) An employer must ensure an employee takes an annual vacation within 12 months after completing the year of employment entitling the employee to the vacation. (3) An employer must allow an employee who is entitled to an annual vacation to take it in periods of one or more weeks. Unjust notice(4) An annual vacation is exclusive of statutory holidays that an employee is entitled to.Vacation Pay – Calculations.58Vacation pay begins to accrue after five days of employmentBased on a % of an employee’s gross earnings from the previous yearIn the first five years, employees receive 4% of total wages earned the previous yearAfter five years, employees receive 6% of total wages from earned the previous yearVP is technically on top of your salary, but in reality ER will just pay you while you’re on vacation instead of paying you 4% per pay cheque and then not pay you while you’re on vacationVacation Pay – Payoutss.58Vacation pay must be paid:At least 7 days before EE takes vacation orOn regular scheduled payday, if agree in writing or provided by collective agreementLeavesLeavesUnpaid time offPregnancy Leaves.50Unpaid leave for employees giving birth to a childLength of leave depends on when request is made, and whether there are any complications with the pregnancyIf leave requested while EE is pregnantUp to 17 consecutive weeks of unpaid leaveCan’t begin more than 11 weeks before expected birth date and not later than the actual birth dateCan’t end earlier than 6 weeks after actual birth date (unless less than 17 weeks being taken) or later than 17 weeks after the actual birthIf leave requested after birth or termination of pregnancy6 consecutive weeks beginning on the date of the birth or the termination of the pregnancyExtension Up to 6 additional weeks if employee is unable to return to work for reasons related to the birth or termination of the pregnancy (physical, emotional or psychological)Parental Leaves.51Paid leave for natural or adoptive parents of a childIn addition to mat leave, usually adds up to full year offLength and timing of the leave depends on the relationship of the employee to the childBirth ParentsIf birth mother has taken pregnancy leave she is entitled to 35 consecutive weeks of unpaid leaveIf birth mother did not take pregnancy leave she is entitled to 37 weeks of unpaid leaveBirth fathers are entitled to up to 37 consecutive weeks of unpaid leaveLeave must begin after the child’s birth and no later than 52 weeks after actual birth dateAdoptive Parents Adoptive parents are entitled to up to 37 consecutive weeks of unpaid leave. This leave must begin within 52 weeks after the child is placed with the parent. Marital status does not matter: Includes same sex partners, Common law partnersExtension Parental leave can be extended by 5 additional weeks in the event a child has a physical, psychological or emotional condition requiring an additional period of parental careAdditional time must follow conclusion of parental leave endsPregnancy and Parental Leaves.51Maximum 52 weeks of unpaid leave plus extensionsEmployee must comply with procedure for requesting both types ofFamily Responsibility Leaves.52Up to 5 days unpaid leave per year to meet responsibilities related to:Care, health or education of a child in the employee’s care Care health of a member of the employee’s “immediate family”Immediate family defined a spouse, child, parent, guardian, sibling, grandchild, grandparent or any person who lives with an employee as a member of their familyBereavement Leaves.53Up to 3 days unpaid leave upon the death of an “immediate family” memberNo requirement to provide noticeNot required to take all three days, nor to take them consecutively; Take within a reasonable timeNot an annual entitlementCompassionate Care Leaves.52.1Up to 8 weeks of unpaid leave to provide care or support to a family member who has a serious medical condition with a significant risk of death within 26 weeks Immediate family or member of a prescribed classEmployee required to provide a medical certificate as soon as practicableDuties of Employers.54Leaves must be grantedNo termination or change in conditions of employmentPlace employee in the same or comparable position upon returnEffect on Employment Statuss.56Employment deemed continuous for purpose of calculating certain benefitsEmployer must continue to make payments to pension, medical or other benefit plans as beforeEmployer must provide all increases in wages and benefitsJury Dutys.55If an employee is required to attend court as a juror, the employer has the same duties under section 54 in relation to the employee as if that employee were on leave under this PartTermination of EmploymentSeverance Pay / Notice Requirementss.63Length of Service severance pay / written noticeLess than 3 mos. None3 to 12 mos. 1 week12 mos. to 3 yrs. 2 weeks3 or more yrs. 3 weeks wages + 1 week/yr, to maximum of 8 wksIf notice period could violate legislated minimums in the future it is void from the beginning, regardless of whether it meets the minimums at the time of termination, and EE will be entitled to reasonable notice at CL – Shore v Ladner Termination – During Layoffs.1An employee on lay off cannot claim termination pay until layoff exceeds 13 weeks in a 20 week periodTermination date will be date upon which employee commenced layoffNo right to lay off EEs in CL If ER lays off EE, EE can claim termination and CL noticeTermination – Group Variances.64Additional notice required where a large number of EEs are being terminated at a single location within a two month period:50-100 employees – 8 weeks101 to 300 employees – 12 weeks301 or more employees – 16 weeksNotice must be provided to Each EE to be terminated; A trade union (if applicable); Minister of LabourSpecify number of employees affected, date of the termination and reason for sameExceptionss.65Not required to provide notice where:Casual employment (Em is optional for EE)Defined term employment (contract)Employment was for specific work to be completed within 12 monthsEmployment has become impossible to perform due to unforeseeable event (Act of God) Employee employed by a construction employer at one or more construction sitesTerminated EE refused reasonable alternative Em with ER (breached duty to mitigate)VarianceVariancess.72Employer and employees, or any of them, may apply jointly to Director of Employment Standards for variances (contract out of certain parts of act)Complaints and EnforcementComplaintss.74In writing, to Employment Standards BranchSix month time limit (limitation period)Can be confidential or anonymousInvestigationss.76Director must investigate complaint unless it falls into an exception (e.g. out of time, frivolous, not made in good faith, insufficient evidence, being dealt with in another forum)Director may conduct investigation on own initiativeDirector encourages settlements (S. 78)Determinationss.78Decision made by an Employment Standards BranchOrder compliancePay $$$Order reinstatement (leaves, retaliation)Post noticesDismiss complaintDirector may reconsider determination (s.86)No constitutional authority (s.86.1)No authority to apply Human Rights Code (s.86.2)EnforcementLiens for unpaid wages (S. 87)Demands on third parties (S. 89)File in Court as judgment (S. 91)Seizure of assets (S. 92)Director or officer liable for up to 2 months’ unpaid wages (S. 96)Monetary penalties (for repetitive breaches) - $500/$2,500/$10,000 (S. 98)AppealsPart 13Director’s determination to Employment Standards TribunalError in lawFailure to observe natural justiceFresh evidence (S. 112)Then reconsideration application to Tribunal (S. 116)Then judicial review to BCSCCases on Employment StandardsShore v Ladner DownsF: Employee was hired by a law firm and his contract provided that after 6 month probation the notice period would be 30 days. After 9 months he was fired and given 30 days pay in lieu. Shore sued saying the clause was void because it had the potential later on to be less than employment standards legislation.I: Is a notice clause greater than the legislated minimum at the time of termination, void nonetheless because it has the potential to be less than the minimum if the employee kept working for a long time (5 years)?A: Policy reasons dictated the result:The Act should be given a broad and purposive interpretation, as it is remedial legislation aimed at protecting employees who are in an unequal bargaining positionAn interpretation of the Act that encourages employers to comply with the minimums and extends protection to as many employees as possible is to be favoured over one that does not (Machtinger Case)If an employment contract fails to comply with the minimum statutory notice provisions of the Act, then the presumption of reasonable notice will not have been rebutted.R: “It is neither reasonable nor practical to leave the individual employee in the position of having to keep an eye on the relationship between the statutory minimum and the contractual term” [to see if the term is still valid]If notice period could violate legislated minimums in the future it is void from the beginning, regardless of whether it meets the minimums at the time of termination, and EE will be entitled to reasonable notice at CLMacaraeg v E Care Contact Lens CentersF: Employee worked for E Care, with an employment contract that had no overtime pay clause. He worked long hours but was told the employer didn’t pay overtime. After 30 months, M was terminated without cause and given 2 weeks pay in lieu. Reasons a person might want to go to common law because it has a longer limitation period – 6 years instead of 6 months, and class actions are available at common law, but not under ESA.I: Can you sue in civil court for rights provided by the ESA and not at common law?A: Trial judge found ESA rights become implied terms of the employment contract and you can then sue at the common law based on those implied terms.CA – there is a presumption that statutory remedies are limited to the statutory regime.In each case, the question is what the legislature intended.The objective and purpose must be viewed as a whole – did the legislature intend that the remedies provided be the sole remedies.An important indication is how effective the enforcement regime provided by the statute is.Where there is a broad comprehensive regime to right the wrongs, the legislature intended that the common law not get involved.If it’s inadequate, then they must have intended it be open to the common law.Statutory rights are not implied terms of the contract.This is a full enforcement regime – no need to rebut the presumptionR: General rule is that there is no cause of action at common law to enforce statutorily-conferred rights. The exception arises when, on a construction of the legislation as a whole, the court concludes the legislators intended that statutorily-conferred rights can be enforced by civil actionIn this case, the ESA provides a complete and effective administrative structure for granting and enforcing rights to employees. There is no intention that such rights could be enforced in a civil action5. TerminationReasonable Notice of Termination General StuffIf no just cause employment contract can only be terminated lawfully by giving the employer reasonable notice in accordance with the express or implied terms of contract that deal with notice periodExpress terms of contractImplied common law noticeExceptions: Just cause based on employee misconduct or gross incompetence Certain cyclical or seasonal industries with fluctuating labour needsLayoff caused by unforeseen or unpreventable events that frustrate the contract e.g. fire destroys plantWorking Notice not seen often‘Payment in lieu’ or ‘severance’ damages ER pays for failing to provide notice of termination that puts employee in position he would be in if he had received notice. – AnsariDamages are not limited to lost income includes all benefits the employee would have been entitled to. – AnsariDamages are not meant to penalize the employer or to give the employee anything more than they would have been entitled to – AnsariRough Upper Limit 18-24 months (Ansari)Can Terminate AnytimeAn employer can terminate an employee at any time and for any reason, so long as they provide reasonable noticeNotice: 3 LayersStatutory Framework – Employment Standards s.63 of ESAExpress Contractual Notice Provisions “If you’re terminated, you will get X”As long as it complies with ESA (equal to or greater), then it will prevailOften there is no express term, or it is illegal (less than employment standards (Machtinger) or going to not comply in the future (Shore)) or unenforceable (ambiguous)Sometimes if substratum of employee relationship has changed – not enforceable (i.e. I was hired as a sales person and now I’m the CEO – so term no longer applies) Has to be a big mon Law – where express terms aren’t there or aren’t enforceable then we look to CL for what is reasonableCourts Avoiding Express TermsCourts in BC use 4 techniques to get around harsh Express termination provisions:Finding it is unlawful – doesn’t meet statutory minimums (Machtinger) or won’t comply in the future (Shore)Finding it is ambiguous – overly vague terms Finding it was introduced after the employment started – no consideration. Need new consideration. (Singh)Finding that the nature of the employment changed fundamentally since it started.E.g. Started as a clerk, now the general manager. Started as sales, now CEO.If the court finds one of these 4, or where there is no express term, the default is common law notice.Policy Reasons For NoticeProtection of vulnerable employees, recognition of seniority, discourages employers from being unprofessional, and rewards high status employeesIdeological Basis – notice helps employees find alternative employment without suffering financial hardshipAnsari v BC HydroFacts: 4 graduate engineers were terminated without cause and without notice by BC Hydro. A was 54 and had worked for 19 years, L was 55 and had worked for 10 years, Y was 46 and had worked for 11 years, and P was 33 and had worked for 9 years. They were given a severance allowance based upon an inadequate formula which was based upon years of employment with B.C. HydroReasonable Notice FactorsBardal Factors for Reasonableness (Used in Ansari)The reasonableness of the notice must be decided with reference to each particular case, having regard to:Nature of the position / character of employment:Higher the position = longer notice. Courts moving away from this though.Education, level of responsibility, salaryLength of service:The biggest predictor!If a break in employment, courts will usually find continuity stillAge:Longer notice period for older employees because job hunt will be harderAvailability of replacement employment Look to:State of the employment marketExperience, training, qualifications of employeeOther personal characteristics of the employee that would facilitate/impede such as age, firm specific skills vs. generalizable skills(Other) Inducement Where employer has induced employee to resign from a secure job or immigrate to Canada on promises of career advancement and job security loses weight over time thoughNon-FactorsCompetence either positive or poor, not amounting to a breach of contract for cause, is not a factor – AnsariBusiness concerns are not a factor (e.g. reduced business activities) – AnsariNear Cause DoctrinePoor quality of work / incompetence insufficient to warrant dismissal cannot be used to reduce period of notice rejected by SCC in DowlingIncreasing NoticeReasons for Increased Notice PeriodCourts have increased notice periods where:Employer did not notify employee of impending termination until last momentDismissed the employee in a manner that diminished their professional reputationRefused to provide a fair referenceDismissed employee in a callous or unprofessional mannerWallace DoctrineThe period of reasonable notice can be extended if the employer handles the dismissal in a callous or insensitive manner, or in bad faith**This has now been changed to damages in Honda**Wallace DoctrineFactors (from text)Attempt to justify dismissal on grounds that are unfounded, especially where allegations damage personal integrity or professional capabilities Handle dismissal in procedurally unfair mannerAttempt to force the employee into resigning by deliberately making life unpleasantAttempt to force the employee into failure by sabotaging their work or setting unattainable targetsResponding in callous and brutal to an employee encountering performance difficulties due to personal or work related problemsTerminate employee in callous or brutal manner fired in front of coworkersUtilizing hardball tactics such as withholding entitlements, cajoling employee to sign settlement offer spur the moment without legal advice, purposely prolonging litigationRefuse a reference or provide an unfair one out of revenge or spiteBadmouth employee’s personal integrity or professional competence out of revenge or spiteJust Cause For TerminationWhat Is It?Just cause is an exception to the requirement to give notice No notice required!EstablishingVery high standardEmployer needs to establish misconduct or incompetenceEssentially, by their actions or inactions, the employee’s misconduct constitutes a repudiatory breach of the contract, releasing the employer from the implied duty to give noticeSummary Dismissal At Common LawGood Faith Decision has to have been made in good faith and not be arbitrary or discriminatoryMust have harmed the production process or the symbolic authority of management the legitimate business interestsProportionality must cause substantial harm to warrant dismissalCourts look to all the mitigating/exacerbating factors involved E.g. Stress in employees life, length of service, provocation, etc.A single instance of misconduct is usually not enough unless serious economic harm caused or intrinsically seriousE.g. – dishonesty, verbal abuse, engaging in competition, challenging the employer’s authority, sexual harassment or physical violence.Procedural Fairness no duty at common law to provide a fair hearing, but employers are expected to:Give the employee a chance to explain their conduct and re-evaluate the decision in light of the explanation.Warn the employee of their deficiencies and help them correctCulminating Incident Rule employer can take into account previous instances of misconduct and incompetence in combination with a new offence in order to justify summary dismissal even when the new offence by itself would not be sufficiently serious to warrant it.All of this is weighted towards the EE If it’s a close call – misconduct is bad but not that bad – court will side with EE and provide reasonable notice instead of immediate termination on just cause.Mitigating Factors(relates to Proportionality)Provocation or mistreatment of the employee by the employerPhysical or mental trauma in the employee’s personal lifeA lengthy record of satisfactory serviceA lack of premeditated intent to harm the employerA mistaken belief by the employee that he was acting the employer’s best interstsEmployer’s failure to handle dismissal in procedurally fair mannerGeneral Grounds for CauseIllness where it gets to the point of frustrating the employment contractNeeds to be like 2 years before the employer can consider thisMust consider human rights legislation and the employers duty to accommodateNeglect of duty failure to meet established, known, standards of performanceEmployer must warn the employee and repeatedly explain what the standards areAbsenteeism away for unknown reasonsEmployer must give the employee a chance to correct the behaviourMisrepresentation of qualifications Only matters if it was relied on by the employerTheft or FraudRefusal to relocate employers get some right to decide where the employment is performed.Employees have to accept a move where the employer has reasonable expectations based on their business that you would relocate (not too far)Ex. Move to Australia no good, move somewhere else in BC might be ok.If you don’t accept the move, then no notice is required.Misconduct countless things could amount to thisContextual analysis in each case within the context of the employment relationship (McKinley)Contextual Analysis for Just CauseThere are degrees of dishonesty and misconduct. In each case it is a question of fact for the trier of fact, who must engage in a contextual analysis – McKinleyConsider: The nature and degree of the misconduct/dishonestyWhether the misconduct violates essential conditions of the contractWhether the misconduct breaches an employer’s faith in the employeeDishonestyDishonesty in and of itself does not warrant dismissal without notice – McKinleyTest for whether dishonesty amounts to just cause whether the EE’s dishonesty gave rise to a breakdown in the employment relationship – McKinleyFactual inquiry A TJ must instruct the jury to determine: – McKinleyWhether the evidence established the EE's deceitful conduct on a BoP; and If so, whether the nature and degree of the dishonesty warranted dismissal. McKinleyFacts: McKinley was a chartered accountant with BC Tel. He had been there 17 years and was 48 years old when he developed high blood pressure. Employer claimed his illness had frustrated the contract. After the trial started, the employer abandoned frustration and started alleging cause based on a letter they discovered from a physician recommending a treatment that could have allowed him to go back to work. BCCA held, contrary to what trial judge said, that there are no degrees of dishonesty, dishonesty is always cause.I: Are there degrees of dishonesty, or is dishonesty always cause for dismissal?SCC Held: There are degrees of dishonesty and misconduct. In each case it is a question of fact for the trier of fact, who must engage in a contextual analysisDishonesty in and of itself does not warrant dismissal without notice. Must analyze further.Previous cases that allowed dismissal for dishonesty had very high degree of dishonesty Employment in the Federal JurisdictionDetermined According ToSeparation of powers in Constitution – s. 91 and 92Federal if labour relations is an integral aspect of a federal undertaking (Actton)Incl. aeronautics, interprovincial trucking, telecom, navigation and shipping, grain terminals, railways, Canada post, banks, first nations related activities (can’t just be a business on a reserve though)Jurisprudence Most common examples based on jurisprudence: airlines, nuclear facilitiesHow To:First look to whether operation is inherently federalIf it is not inherently federal, look at whether the operation is functionally integrated with one that isTest for Functional Integration ActtonIn order to be considered federal the intra-provincial business must be functionally integrated (vital/essential) with the interprovincial operation such that the whole is properly regarded as a single integrated federal undertaking rather than two separate undertakingsFunctional integration requires that prima facie the provincial undertaking be vital or essential, not just integral, to the federally regulated undertaking.To be "vital or essential" the provincial undertaking must be shown to be "absolutely indispensable or necessary" to the federal undertaking Factors operational/business realities, substance of activity being carried out, nature or character of undertaking being carried onHere, Actton owned an interprovincial trucking business (clearly federal) but also had intra-provincial garbage disposal business. Employees of garbage disposal business made a claim under ESA but Actton says they are federally regulated. Held: the garbage disposal business was purely intra-provincial and not functionally integrated with Actton’s inter-provincial federally regulated trucking operationsSeparate Operations A business can have separate operations, each of which is separately regulated (one provincial, one federal) – ActtonShared OwnerThe fact that an intra-provincial operation shares owners with an interprovincial operation isn’t determinative – ActtonGoverned ByCanada Labour CodePart one: industrial relations (federal labour code)Part two: occupational health and safety (federal equivalent of works comp act)Part three: standard hours, wages, and holidayUnjust DismissalUnjust DismissalSeparate from wrongful dismissal, exists under s. 240 of Canada Labour CodeFeaturesAdjudicator can reinstate employee who has been unjustly dismissed rather than just award damagesCan give some damages like relocation costs, retraining costs, etc.Has more remedial Who Can Bring Claim?Person has to be EE (can’t be independent contractor), not a manager, 12 months continuous employment complaint has to be made w/in 90 days of dismissal but minister has discretion to extend.existence of dismissal (termination by ER, not resignation by EE or for cause termination) (doesn’t exclude constructive dismissal) Just CauseWorker’s conduct that causes or is likely to cause substantial harm to the production process (incompetence?), legitimacy of management’s authority to issue orders (gross breach – stealing), or public confidence in the employer’s business (reputational damage)LayoffsDoesn’t apply for layoffs – layoff is a bona fide gesture to provide efficiency, adjudicator will look at whether layoff was genuine. Will look at whether EE was properly selected to layoffRequirementsThere can be no collective agreements or a statutory mechanism for redressReasons for Unjust DismissalUnjust dismissal provisions only prohibit dismissal if it is arbitrary, capricious or based on personal dispute Wilson v Atomic EnergySufficient severance does not preclude a claim for unjust dismissal. The above factors still apply where dismissal has been deemed to be unjustReinstatementIf dismissal is deemed unjust, reinstatement is the preferred method, although only awarded in roughly 33% of cases Not appropriate where there’s deterioration of relationship, loss of trust, contributory fault of the EE, attitude of EE is not likely to improve, EE is physically unable to work, job no longer exists, where company has gone bankrupt Monetary order is awarded6. Constructive Dismissal + MitigationConstructive DismissalWhat is it?When one party to a contract fundamentally breaches the contract, the innocent party is free to walk away from it and sue for damages.In employment law where the employment contract is changed in such a fundamental way that the employee is able to leave work and sue for damages (reasonable notice) alleging that they have been dismissedBasic QuestionsWhat are the terms of the contract?Was it written down?Has there been a breach of those terms?Is that breach sufficiently serious to be characterized as fundamental?Does it go to the root of the contract?Has the employee terminated the contract (acknowledged the breach) in a timely manner?Or have they acquiesced to it by remaining?Occurs Where An employer makes a unilateral and fundamental change to a term or condition of an employment contract without providing reasonable notice of the change – FarberTestTo find that someone has been constructively dismissed the court must determine whether the unilateral change imposed by the employer, substantially altered the essential terms of the employee’s contract of employment – FarberTimingJudge must ask whether at the time the offer was made, a reasonable person in the same situation as the employee would have felt that the essential terms of the employment contract were being substantially altered – FarberSubsequent EvidenceAdmissible only if relevant But here, the subsequent sales figure could not reasonably have been foreseen at the time of the offer. Employee could not anticipate that the sales figures would go upBad Faith?Bad faith isn’t necessary – Farber Types of Breaches**Can Be Assessed Holistically**Change in compensationWhether this amounts to a fundamental breach depends on the amount of the changeA rough guide is 10%Must look to the salary (+ other compensation like RRSP contribution etc.), the percentage change, compare it to the economy and what the justification of the employer isFarber In new position, income would have been limited to commissions. He would have received no guaranteed base salary.Change in job duties:Can’t change a job so that the essential nature of the position has changed.Look at what the core job functions are, what were they hired for, and compare these to what they are being asked to do going forward.Will be permissible where the employer can show they are responding to business needsDemotion is usually enough to amount to CDFarber The manager’s position at the new branch was a significant demotion for the appellant. His responsibilities were being drastically cut, resulting in a considerable loss of status and prestigeRelocation:There is some degree of latitude as to where an employee is put.Look to the nature of the job – is it expected that there could be a move.Depends on the circumstances of the employer and the employee Family situation, dependent children with needs, illnesses, etc.Unfair Treatment (generally):There is an implied term in the contract that the employee will be treated fairly and with respectIf the employment environment is poisoned, the employee can say the nature of the relationship has been fundamentally altered.CondonationContinuing to work through (like estoppel)By accepting the change, you can’t rely on it later for damagesTiming:Court will permit the employer to try out the changed job and see how it goes for a reasonable period of time at least a few monthsWill also give them a reasonable amount of time to look for another job while still performing the changed job.Don’t have to cease employment immediatelyObjective test is applied to determine:Would a reasonable person in the position of the employer think the employee had accepted the change?Questionable whether an employee who continues to work, but is saying the whole time that they aren’t accepting the change, is condoning.FarberHere, Farber worked as a real estate agent and worked his way up to become the regional manager. The company then decided to restructure and eliminated his position. He had supervised 400 real estate agents, and administered 21 offices. Royal Trust offered him the position of branch manager (he had held that position 8 years earlier). The branch at the time was one of the least profitable in the province. Farber believed his income would be cut in half if he accepted. It later turned out it wouldn’t have been. He tried to get a better branch, but was denied and so he brought an action for damages for constructive dismissal. Held: the respondent’s offer amounted to constructive dismissal, since it is clear that it substantially altered the essential terms of the employment contract. At the time the offer was made, any reasonable person in the same situation as the appellant would have come to that conclusion. The manager’s position at the Dollard branch, which was experiencing problems, was a significant demotion for the appellant. His responsibilities were being drastically cut, resulting in a considerable loss of status and prestige. As well, the offer considerably altered his salary terms, since as manager of that branch his income would have been limited to commissions. He would have received no guaranteed base salary. The unilateral change was extremely detrimental to the appellant’s financial security. Neither the $40,000 reorientation allowance nor the $48,000 for commissions the appellant had already earned as regional manager could take the place of a guaranteed salary.ProbationWhat is it?A period at the commencement of the relationship where things are different – much less secure employmentExists Only IfOnly exists if it is expressly agreed to.Standard for termination must be expressly set out by the employer in order for the employer to terminate without proper notice.If Imposed After Employment CommencesIt stands where the employee agrees out of a fear of being fired.But, if they don’t agree, then the imposition of a probationary period could be constructive dismissal.MitigationWhat is it?Someone who suffers a loss has a duty to take reasonable steps to reduce the loss applies to employees who suffer losses as a result of dismissalEEs have a duty to mitigate loss and replace some or all of that income EE’s have a duty to go out and look for a new job. Damages are income they’ve lost during notice period, so they have a duty to replace that income. Every dollar they earn during that period comes off damages they’re owed.Avoided loss – means Plaintiff did mitigate, they earned money, and avoided some part of the loss, and ought not to be compensated for thatConsequences of the DutyFailure to mitigate if an employee fails to take reasonable steps, the employer can argue the damages should be reduced.Every dollar earned from the new job is a dollar for the benefit of the old employerPractically, most judges give an employee a bit of time to recover from the dismissal before they have to go out and find a new job.Probably about 4-6 weeks depending on the circumstancesOnce the duty to mitigate commences, it runs for the entire term of the notice period.An employee can get compensation for expenses of finding a new job (cost of hiring someone to help with a resume, etc.)Onus on EmployerOnus is on the employer to show that the employee didn’t mitigate Very high threshold Not enough to say the employee didn’t look very hardEmployer has to point to particular jobs that were available during the notice period for which the employee was suitable.What is Not Expected of EmployeeCourts will very rarely expect an employee to move in order to mitigate.Only where they are in a job that normally moves a lot.Courts won’t expect a person to take a job that represents a 30-40% drop in salary.Focus of the inquiry is reasonableness.Don’t need to take a job with significantly less prestigeMitigation/Returning to Same EmployerMitigate damages Unless returning to work would be unreasonable, on an objective basis, an EE is expected to mitigate damages by returning to work for the dismissing ER – EvansIn assessing whether it’s reasonable to come back, court will consider is job, duties, reporting relationships, remuneration essentially the same? Are personal relationships more difficult? Would it cause the employee embarrassment or humiliation in the changed job – EvansEE not required to stay/return to work in an atmosphere of hostility, embarrassment or humiliation (Farquhar not in readings)Here, major factor court considered was that he had been willing to return to work initially and at 5 months’ time. In the court’s view, this evidence makes it clear that the relationship b/w Mr. Evans and the union was not seriously damaged and, given that the terms of employment were the same, it was not objectively unreasonable for him to return to work to mitigate his damages.Mitigation ≠ CondonationStaying in the job doesn’t necessarily mean condonation EE’s might choose to stay in the job as a means of mitigation, and aren’t condoning the change – RussoHere, P was 53 years old and had 37 years of service. Didn’t finish high school. Kerr bros had been only ER. Started as shipping clerk, and ultimately became warehouse manager, earning $130k annually. Company began to struggle financially. New president takes over and begins making dramatic changes. He demands that P agree to reduction in salary to $60k. Obviously this is CD, unless EE consents. Held: EE did not condone, just mitigatedTiming can only be for the period of reasonable notice though!Practically Make it clear to the ER that you do not condone the changes and that you position is that this is constructive dismissal. Can remain in the workplace but only for the period of reasonable notice.Post-period of reasonable notice it must then be concluded that he has accepted a new employment K under the changed terms after the expiry of the period of RN.Fixed Period of Notice for No Cause DismissalNo duty to mitigate when there is an express clause in the contract regarding entitlement upon termination – Bowes Where parties to an Em contract substitute a fixed period of notice, this displaces the CL period of RN. Parties are entitled to do so as long as they comply with minimum statutory requirement relating to notice – BowesFixing of notice is akin to fixing liquidated damages or a contractual amount, thus there is no obligation on the EE to mitigate his or her damages – BowesParties must agree to specifically put in a duty to mitigate. It is not impliedHere, Bowes was a VP Sales & marketing. He had a written Em K, which stated that on termination he was entitled to specified amounts of pay in lieu of notice, based on period of service. He was able to find a job 2 weeks after he was terminated. ER said that after 3 weeks they were no longer required to pay him (per statutory minimum). Held: still had to pay full amount in K7. Post-Employment Competition – Restrictive Covenants Restrictive CovenantsWhat is it?A clause in an employment K that seeks to prevent an EE from exploiting an ER’s trade secrets, confidential info, general business goodwill, or from competing with the ER after their employment relationship has ended.3 Competing InterestsEmployer’s interest in protecting its businessEmployee’s interest in making a living and, Public interest in the mobility of labourEnforceable?Presumption that restrictive covenants are unenforceable as being in restraint on trade The old employer has the onus to rebut this presumption A restrictive covenant will only be enforceable if: It is unambiguous and clear – ShafronHere, ex-employee could not work in “metropolitan Vancouver” but this was an ambiguous term. Court here did not cut out ‘metropolitan’ severance will probably never be usedIt must relates to a proprietary interest (must relate to employer’s business somehow) that is entitled to protection – Valley FirstNo reason why someone should be restrained from competing if ER doesn’t have a proprietary interestER doesn’t have a right to corner the marketER must point to something ER has a legitimate interest in protecting e.g. relationships with customers, IP, ways that ER does its business, trade secrets, training the ER has providedThe restrictions are reasonable in terms of duration, geography and scope of activities. Can’t be broader than is necessary to achieve employer’s proprietary interest – Valley First Time – Certain industries will require less time such as high tech industries which change quickly.The covenant restricted Trach from engaging in insurance and financial services generally even though he only worked in group benefits insurance. What he knew about was only a small part of what he was prevented from doing, so he would have been prevented from doing things he has never done. Held: clause was unreasonableNot contrary to public interest – Valley FirstEven if RC is otherwise enforceableOnus on party seeking to challenge validityE.g. if EE provides services to the public (like health services, vets, etc.)If Clause is Overly-Broad or AmbiguousMay not be enforceable if it covers activities the employee did not do while employed – seen in Valley FirstAn overly-broad or ambiguous restrictive covenant will be prima facie unenforceable because the party seeking enforcement will be unable to demonstrate reasonableness in the face of an ambiguity can still sever the offending parts but this is rare – seen in ShafronContra preferentum interpret against employer if there is uncertaintyContextImportant to understand the context in which the RC was agreed to. Was it in employment context or business context (sale of business)? business context more likely to be reasonable than employment – Shafron Here, Shafron sold his brokerage business, and then worked for the company he sold it to. The RC was put in place as an employee, not as the seller.Need ConsiderationCan be a classic example of not having consideration if imposed after the employment startsSurvives Termination?Where the employment contract has been breached, most courts say the restrictive covenant doesn’t survive, but this isn’t settledWays to Establish a Restrictive CovenantWritten into the employment agreementBargaining position favours the employer because the employee just wants the jobPerson owns a business and sells it contract of sale will usually include a restrictive covenantThe bargaining position is equal, so there isn’t as strong a presumption that the covenant should be unenforceable.Where the employee becomes a shareholder at some point during their employmentShareholder agreements contain restrictive covenants, but they are different to ones found in employment contracts.SeveranceIf a restrictive covenant is found to be an unreasonable restraint of trade: The courts will not necessarily void the entire provisionThey may simply expunge the offending part of the provision and leave the remainder.This will only be done if it is possible to sever the offending part without rendering the remainder meaningless or absurd.Two types of severance: – discussed in ShafronBlue Pencil – can the judge strike out, by drawing a line through the portion of the contract they want to remove, leaving the portions that are not tainted by illegality, without affecting the meaning of the part remaining.Blue Pencil should only be used sparingly and only in cases where the part being removed is clearly severable, trivial and not part of the main purport of the restrictive covenant.Notional – reading down an illegal provision in a contract that would be unenforceable in order to make it legal and enforceable.While courts wish to uphold contractual rights and obligations between parties, applying severance to an unreasonably wide restrictive covenant invites employers to draft overly broad restrictive covenants with the prospect that the courts will only sever the unreasonable parts or read downNotional severance therefore has no place in constructing restrictive covenants in employment contracts.Also Russian doll employer puts in clauses that are continually less restrictive in the event that the more restrictive ones get struck downNon-Competition vs. Non-SolicitationNon-competition you can’t go within a certain geographic area and compete against meUnenforceable if non-solicitation would sufficeNon-solicitation it is ok to compete, but you can’t solicit the former employer’s clientsIf non-solicitation is sufficient, but a non-competition was used, it will be unenforceable – seen in Valley FirstThe covenant restricted Trach from engaging in insurance and financial services generally even though he had only had contact with Valley’s group benefits clients. What he knew about was only a small part of what he was prevented from doing, so he would have been prevented from doing things he has never doneImplied Duties(No Restrictive Covenant)No duty not to compete if just a normal employee but there is a duty if you are a fiduciarySome obligation to give notice of resignation – Merrill LynchDuty of confidentiality – implied, doesn’t need to be express – Merrill LynchAn employee who has terminated employment is not prevented from competing with his or her employer during the notice period – Merrill LynchThere is no concept of unfair competition and there is no duty to compete fairly – Merrill LynchHere, branch manager for RBC took all investment advisors to competitor Merrill Lynch with no notice. Liable for no notice and improper use of confidential information but not for improper competition.InjunctionsWhat is it?An order from the court that stops a party from doing something.The former employer can go to the court, say there has been a breach and show evidence of the former employee doing that.The injunction prevents the activity until the trial dateEvidence for Injunction ApplicationHave to get written evidence (affidavits) from the clients stating that the former employee approached them and tried to solicit their business.Must be direct evidence (sworn affidavit)Business reality kicks in here:Businesses rarely want to get their clients involved and therefore gathering evidence can be difficult.8. Remedies for Breach of Employment ContractBad Faith DismissalDutiesThere is an expectation by both parties to the K that ER’s will act in good faith in the manner of dismissal Failure to do so can lead to foreseeable, compensable damages – Honda ERs have: – Honda an obligation of good faith and fair dealing in the manner of dismissal and an obligation to be candid, reasonable, honest and forthright with their employees on dismissalBreachER’s have a duty of good faith in dismissing EE’s – Honda endorsing Wallace Breach if Employer engages in conduct during the course of dismissal that is "unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive” – Honda citing Wallace principleNo damages are available for the actual loss of employment and/or pain and distress that may have been suffered as a consequence of being terminated (needs to be bad faith dismissal) – Honda and BeggsRequirement of Causal LinkThere has to be a clear causal link b/w the way someone is terminated and the harm suffered – Honda and seen in Beggs in mental distress contextRemedyAppropriate remedy for breach of good faith dismissal is damages – Honda Not extending notice period! Conduct Required for Punitive Damages(Prof: Don’t Worry About)*These go above and beyond the Honda damages for bad faith dismissalPunitive damages are restricted to wrongful acts that are outrageous/malicious and are deserving of punishment on their own – Honda Conduct meriting punitive damages is limited to acts that are harsh, vindictive, reprehensible and malicious, as well as extreme in nature and such that by any reasonable standard it is deserving of full condemnation and punishment – Honda They are punitive not compensatory, ER has to behave really badlyBad Faith – Look For:Making false accusations,Damaging the employee's prospects of finding another job,Misrepresenting the reasons for termination,Firing the employee to ensure deprivation of a benefit, andFiring the employee in front of coworkers.Hurt Feelings / Mere TerminationThere are no Honda damages for normal distress or hurt feelings from merely being terminated. It’s expected to be an unhappy time – Beggs Must be the manner of dismissal that causes the harmHondaSCCFacts: EE had worked at Honda for a while. EE was absent a while b/c of chronic fatigue syndrome. He eventually came back but had many absences. Keays continued to absent himself, and was placed in Honda's disability program, where absence was allowed contingent upon proof that it was related to a disability. SCC said they managed his absences properly. Honda eventually referred him to an independent medical examiner to express an opinion. EE refused to attend. Honda eventually let him go b/c they felt they had done all they could.Held: Punitive damages were not justified based on the facts. Honda’s conduct was not sufficiently egregious or outrageous to warrant an award of punitive damagesBeggsBCCAFacts: She worked part-time at D’s grocery store for 10 yrs. A fire destroyed her home. She called in saying she wouldn’t be in for a while – didn’t know when she’d return. He tried to reach her again, but phone was disconnected. He didn’t attempt to contact her again after first week. After a month, ER completed a Record of Employment stating how Em had come to an end – saying she quit. She was suffering from depression and anxiety related to home burning home. She saw doctor and got note to obtain EI. She visited workplace and was told ROE was ready, she picked it up. Opens it and sees that it says she quit. She hires a lawyer, they send a letter to company’s counsel. There’s a nasty back and forth regarding whether she quit or was terminated, whether she could return to work based on medical situationNegligent MisrepresentationApplicable in Employment Law?The Hedley Byrne test for negligent misrepresentation applies to representations made by an employer to a prospective employee in the course of an interview – Cognos RequirementsThere must be a duty of care based on a “special relationship” between the representor and the representee.Exists b/w ER and potential EE during interview process Potential EE is relying on representations made by ERThe representation in question must be untrue, inaccurate, or misleading.Has to relate to some existing fact – relate to job the person is applying for, not some expectation for the futureUsually relates to nature of job duties, degree of job security, whether qualifications from another country are acceptable hereDoesn’t relate to persuading a potential EE to accept job to be based on company’s potential future growthThe representor must have acted negligently in making said misrepresentation.ER must take reasonable care standard is that of a reasonable personThe representee must have relied in a reasonable manner, on said negligent misrepresentation.EE received the info and accepted the jobThe reliance must have been detrimental to the representee in the sense that damages resulted.E.g. relocation expenses, resigned from previous position etc.RemedyTries to restore EE to position they would have been in but for the neg. misrep.Concurrent Contractual Provision?If the pre-contractual representation relied on by the plaintiff became an express term of the subsequent contract then the plaintiff cannot bring a concurrent action in tort for negligent misrepresentation and is confined to whatever remedies are available under the law of contract – CognosHere, there was no concurrency as there was no express contractual provision that was co-extensive with the duty of care that Cognos is alleged to have breached.So long as the common law duty of care invoked by the employee is "independent" of the employment agreement then an action can be commenced in tortEmployer Should… Insert a valid disclaimer of responsibility for the representations made during the interview in order to get around this and not be liable. CognosFacts: Appellant accountant applied to advertised position with Cognos although he already had a good job. Respondent said the job was associated with a big project, even though project had yet to secure funding. Successful application and moves to Ottawa. 18 months later, Cognos terminates employment. He sues for neg. misrep. Issue: The appellant argued that the manager negligently misrepresented the nature and existence of the employment opportunity being offered. It is the existence, or reality, of the job being interviewed for, not the extent of the appellant's involvement therein, which is at the heart of this tort actionCommon Law Remedies for Wrongful DismissalGoalCompensate EE for failure to comply with contractual duty to give noticeNot to make whole for the dismissalMeasure of DamagesRestricted to the value of contractual entitlements that would have vested in the EE during the period required to terminate the K of employmentMay include wage increases that are due to accrue Wage Increases / Bonuses / Commissions Included?Increase or bonus that depends on employer’s discretion is non-compensable unless you can fetter the exercise of discretion by an express or implied term of the KCourt may imply term and assess whether ER, acting in good faith and reasonably, would have awarded bonus/commission based on EE’s performanceCourt may look to commission/bonus given in previous years to determine if something would have been awarded in the notice periodFringe Benefits / InsuranceCan only be compensated for fringe benefits that would have been contractually entitled to during the notice periodE.g. get value of pension benefits that would have vested during notice periodCourts will reimburse for out of pocket expenses that would have been covered by the ER’s insurance planIf EE dies after wrongful dismissal there is an argument that any life insurance benefits that would have accrued should be paid out as well because they would have been entitledPsychological Harm?Unlawful element of wrongful dismissal is the violation of the notice requirement, not the fact of dismissal itself obstacle to recovery for psychological harm because harm flows from fact of dismissal, not fact that notice requirement not metHard to establish psychological harm is reasonable foreseeable Compensated ForWages and benefits that would have accrued during the notice periodNot for ex gratia expectanciesScope of ER’s Contractual LiabilitySubject to the general contract law rules of remoteness of damagesDamages that ought to be received must be fairly and reasonably considered as arising naturally from the breach of contract itself or such that were reasonably contemplated by both parties at the time they made the contractDeductions of DamagesEE has duty to mitigate must take reasonable steps to minimize the extent of the losses sustained in the wrongful dismissal i.e. get new employment9. Human Rights and Employment Human RightsBasicsEntirely statutory no common law or tort recognitionAll jurisdictions have human rights statute in CanadaRelevant SectionsDiscrimination in employment advertisements is prohibited – HRC s.11 Employer can’t discriminate between employees through wages / pay rates by paying one sex less than the other for substantially similar work – HRC s.12Substantially similar work based on the concept of skill, effort and responsibility but allows for seniority/merit systems – HRC s.12Cannot refuse to employ / refuse to continue to employ / discriminate regarding employment or condition of employment because of: – s.13 HRCRace, colour, ancestry, place of origin, Political belief, religion, Marital status, family status (mom/single mom/being related to someone particular etc.) Physical disability (can include drug / alcohol dependence, nicotine addiction, obesity), mental disability, Sex (includes pregnancy and sexual harassment), sexual orientation, Age (used to say it was ok after 65, not so now), A criminal conviction that isn’t related to the employment or intended employmentThe grounds in the code are exhaustive! Making a ClaimOnus on claimant to establish a causal connection between protected characteristic and discriminatory treatmentNot enough that they lost their job treatment must be because of the characteristic Not necessary to establish that it was the dominant reason just have to show that it formed some part of the decision.Once established, onus shifts to ER to justify what they’ve done. Have three responses to prima facie case:Rebut by showing no adverse treatment What EE thinks happened didn’t happenShow that person doesn’t have characteristic / protected groundShow no nexus between treatment and characteristic the treatment wasn’t because of the prohibited ground (e.g. no raise because you suck, not because you are different race)Show that discriminatory decision was a bona fide occupational requirement (BFOR) we discriminated against you but we had no choice3 part test from Meoirin3 Part Test for BFOR on BOPMeoirinPurpose of standard must be rationally connected to the performance of the job E.g. taxi driver can’t be blindValidity of purpose is the issue, not the validity of the particular standardHonest and good faith belief it was necessary for fulfilment of the legitimate work-related purposeCan’t be motivated by discrimination / not think reasonably necessaryThe standard is reasonably necessary to accomplish legitimate work related purposeReasonableness of the particular standard is at issue hereER must show it’s impossible to accommodate the claimant and others adversely affected by the standard without experiencing undue hardshipFactors include financial cost of accommodation, the relevant interchangeability of workplace facilities, prospective interference with other EEs – see Renaud below alsoMust take into account personal characteristics of the individual can’t be based characteristics of class to which complainant belongsHere, Lady Meiorin worked as forest firefighter for 3 years successfully. BC Gov’t established minimum physical fitness standard for these folk. Part of test was running standard (aerobic test). Meiorin had in the past performed her work satisfactorily, couldn’t pass the aerobic standard and was dismissed. Union brought grievance on her behalf. Held: Failed on 3 part of test didn’t demonstrate that the particular aerobic standard was reasonably necessary to ID those people who are able to perform the tasks of forest firefighters safely and efficientlyDistinction Between Direct and Adverse Effect?No distinction between direct discrimination (explicit) and adverse effect discrimination (not discriminatory on its face but has that effect) – MeoirinHere, the aerobic test had the effect of discriminating against female firefighters despite not directly discriminating against females on its face Contracting Out of Human Rights/Collective AgreementUnion cannot contract out of provincial human rights legislation through collective agreement – it must comply – Renaud The human rights legislation requires is that the party be accommodated by exempting him from its provisions to the extent that it no longer discriminates against himDuty To AccommodateRenaudWho? EE, union and ER all have duty to accommodateWhat is required? ER has duty to take (a)reasonable measures (b) short of undue hardshipMore than negligible effort“Reasonable measures” a question of fact in each case “Short of undue hardship” measures that occasion undue interference with the ER’s business or undue expense are not requiredSome hardship is acceptable, only “undue” hardship satisfies the testMore than minor inconvenience Non-exhaustive factors for undue hardship:Financial costsDisruption of collective agreement (in union context)Problems of morale with other EEs more than minor inconvenience must be shownSubstantial interference with rights of other employeesInterchangeability of employees to accomodateSize of operations (can influence whether cost is undue or the ease with which workforce or facilities can be adapted) Custodian was seven day Sabbath observer, but work schedule (part of Collective Agreement “CA”) interfered with claimant’s ‘no work from Friday sundown to Saturday sundown’ policy. EE gave a bunch of other alternatives to ER, were rejected by union. Only practical accommodation was Sunday to Thursday shift, but it involved exception to CA and union wouldn’t consent to it. Held: Union CA discriminated and didn’t accommodate even though they could haveDamagesCan arise in three ways in the employment context:Relating to lost wagesDifficult to assess because there is no standard – it is not common law notice.Could be as long as it takes to get a new job – very arbitrarySpecial damagesRelocating cost, counselling, etc.Injury to dignity hurt feelings and self-respectLike general damagesRough upper limit in BC is $35,000Sexual HarassmentJanzenDefinition (a) Unwelcome conduct (b) of sexual nature (c) that detrimentally affects work environment or leads to adverse job related consequences for the victimDiscrimination? Sexual harassment is a form of sex discrimination Subjected to different and more onerous psychological burdenER Liable? ER ALWAYS liable when harassment is committed by EEs carrying out power over other EEs in an abusive way on the basis of sex. Broader liability than just vicarious liability.Discrimination doesn’t require uniform treatment of a group Not a defense to say that it’s not sex discrimination just because not all women are being harassedIt’s sufficient that the ascribing of a group characteristic to a person is one factor in the way they’re treatedManager does nothing about sexual harassment from cook. Verbal abuse. Blames woman. Woman quits. Held: The offending EE was acting in respect of his Em when he sexually harassed the girls, his actions were clearly work related. ER found liable for his conduct.10. Privacy Law and EmploymentPrivacy LawBasicsPrivacy ActFreedom of Information and Protection of Privacy Act (FOIPPA)Personal Information Protection Act (PIPA)Personal Information Protection and Electronic Documents Act (PIPEDA)Privacy ActWilful violation of another’s privacy is a tort – s.1 Nature, degree of privacy entitlement depends on what’s reasonable in the circsExceptions – not a violation if there’s consent, incidental to lawful protection of property, or authorized by law – s.2 BC FOIPPAApplies to provincial public bodiesFreedom of Information To make public bodies more open and accountable by providing the public with a legislated right of access to government records, andProtection of Privacy To protect your right to personal privacy by prohibiting the unauthorized collection, use or disclosure of your personal information by public bodies.BC PIPAApplies to provincial private sector organizations (ie. unions, doctors’ offices, companies, etc.)Legislation is meant to address concern over how personal info is collected, stored and usedAlso access to personal and general information.Similar exceptions as FOIPPAPIPEDAApplies to employees of federally regulated works or undertakings and private sector in the course of commercial activities (banks, telecom, airlines, shipping)It does not apply in provinces w/ substantially similar legislation (since 2004)PIPEDA governs in BC!CommonalitiesPersonal information protection“Reasonableness” – what is reasonable in the circs?Limited collection, use & disclosure why is it being collected and for what use?Identification of purposesKnowledge & consent of individuals, can be express or impliedSecurity safeguards that are appropriate to sensitivity of information need to be usedTransparency (re: how companies are using info, need clear policies) & accuracy (provisions for how individuals can correct info)Access to InformationGeneral vs personal rightsSpecific exceptions and redactionsRegulatory oversightPrivacy Commissioner of Canada enforces PIPEDABC Information and Privacy Commissioner enforces PIPA + FOIPPAHiringI.e. Interviewing, resumes/applications, reference checking, background checks, psychological and aptitude testingEach may be permissible if reasonably required to make hiring decision; can’t over-collectRegarding social media, Commissioner says people have expectation of privacy so ERs must be reasonableEmployment RecordsI.e. resumes, personnel files, work performance evaluation and documentation, disciplinary recordsUnion – some CAs require disclosure on request of Em recordsEE always entitled to personal informationManagers – there’s no such thing as “secret notes” so don’t write down something you don’t want EE to see ................
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