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«Prepared by: The Labour & Employment Group SFU Engineering Science January 29, 2004 3000 Royal Centre • P.O. Box 11130 1055 West Georgia Street ...»

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Employment Law in British Columbia

Prepared by:

The Labour & Employment Group

SFU Engineering Science

January 29, 2004

3000 Royal Centre • P.O. Box 11130

1055 West Georgia Street

Vancouver • BC • Canada • V6E 3R3

Phone: 604.687.6575 Fax 604.641.4949

www.bht.com

E-Mail: Labour@bht.com

Table of Contents

I. INTRODUCTION

II. THE COMMON LAW

A. DUTIES OF AN EMPLOYER

(a) Reasonable Notice

(b) Cause

(i) Theft

(ii) Dishonesty

(iii) Wilful Disobedience

(iv) Insolence and insubordination

(v) Conflict of Interest

(vi) Incompetence

(vii) Intoxication

(viii) Absenteeism or Lateness

(c) Bad Faith

B. DUTIES OF AN EMPLOYEE

(a) Confidential Information and Trade Secrets

(b) Competition with Former Employer

C. EMPLOYMENT CONTRACTS

(a) Confidential and Proprietary Information

(b) Non-Competition Agreements and Restrictive Covenants

D. EMPLOYMENT STANDARDS ACT IN BRITISH COLUMBIA

(a) Introduction

(b) To Whom Does the Act Apply?

(c) What is the Scope of the Act?

(d) Minimum Wages

(e) Hours Of Work And Overtime

(f) Vacations

(g) Maternity Leave

(h) Parental Leave

(i) Effect of Maternity and Parental Leaves

(j) Notice Periods And Termination

(k) Effect of Written Employment Contracts

(l) How are Complaints Made Under the Act?

(m) Remedies Under the Act

(n) Overlap Between the Court and the Act

(o) The Effect of Section 118 of the Act

E. HUMAN RIGHTS CODE

(a) Discriminatory Publication

(b) Discrimination in Employment Advertisements

(c) Discrimination in Wages

(d) Discrimination in Employment

(e) The Question of Intention

(f) What is a Bona Fide Occupational Qualification?

F. WORKERS’ COMPENSATION ACT

I. INTRODUCTION

This paper will examine the relationship between a non-union employee and employer in the

context of the following regimes:

1. the common law, which include written contracts;

–  –  –

3. the Workers’ Compensation Act, R.S.B.C. 1996, c. 492; and

4. in some cases, the Employment Standards Act, R.S.B.C. 1996 c. 113.

II. THE COMMON LAW

Most employment relationships are not governed by a written employment agreement.

Furthermore, in many instances where there are documents between an employee and employer, the document does not include all of the terms of the employment relationship.

Where there is no written contract or where the written contract is not complete, the common law will imply terms into the relationship and impose duties onto both the employer and the employee.

Under the common law, the duties an employer owes to an employee include:

–  –  –

In addition to the above, some employees owe increased duties of confidentiality.

Disputes arising under the common law are resolved through the Court.

A. DUTIES OF AN EMPLOYER

(a) Reasonable Notice It is an implied term of every employment contract that, absent cause, an employer must provide an employee with “reasonable notice” of termination. Such notice, to be effective, must be clear and unequivocal.

–  –  –

The purpose of providing “reasonable notice” is to provide the employee with time to find alternative employment. What constitutes reasonable notice varies from case to case. There is no set formula under the common law upon which to determine reasonable notice. The usual refrain of one month per year is not accurate. “Reasonable notice” under common law is also different from the notice required to be given under the Employment Standards Act, which will be discussed below.

When determining what would be a reasonable notice period, employers often consider Court decisions in similar cases. The Court determines reasonable notice on an individual basis but

considers the following factors:

–  –  –

In some cases, the notice period will be lengthened where the employee was induced to leave secure or long-term employment to join the employer and was then terminated by the new employer without cause.

Notice periods vary widely. Although the Court had indicated that the upper limit of the reasonable notice period was twenty-four months, recent awards exceeding twenty-four months have been made by the Court where the employer has acted in bad faith.

–  –  –

An employer is entitled to dismiss an employee without reasonable notice for cause. The employer will bear the onus in any subsequent litigation to prove that it had cause to dismiss the employee without providing reasonable notice. In British Columbia, the Court is generally very reluctant to find that cause exists. The onus placed upon employers is a high one.

The employer must show that the employee’s conduct went to “the root of the employment contract” with the result that the relationship was “too fractured” to expect the employer to provide a second chance.





Examples of the type of conduct which has been found to warrant immediate dismissal

include:

–  –  –

This would include lying, and in some instances silence. Not all acts of dishonesty will give the employer the right to dismiss an employee for cause. The Supreme Court of Canada has held that such a determination depends upon the nature and circumstances of the

dishonest conduct. The court made the following comments:

… I am of the view that whether an employer is justified in dismissing an employee on the grounds of dishonesty is a question that requires an assessment of the context of the alleged misconduct. More specifically, the test

–  –  –

is whether the employee’s dishonest conduct gave rise to a breakdown in the employment relationship. … In accordance with this test, a trial judge must instruct the jury to determine (1) whether the evidence established the employee’s deceitful conduct on a balance of probabilities; and (2) if so, whether the nature and degree of dishonesty warranted dismissal. …

–  –  –

Dishonesty may take the form of omission of important information, particularly where the employee is in a position of trust or where the information is of fundamental importance to the employer. Whether the employee lied or whether the employer simply avoided the issue when she knew the issue to be important, the result is the same.

–  –  –

This includes refusing to obey or follow clear instructions or well-known policies or

procedures, without reasonable excuse. The Court has stated:

I begin with the proposition that an employer has a right to determine how his business shall be conducted. He may lay down any procedures he thinks advisable so long as they are neither contrary to law nor dishonest nor dangerous to the health of the employees and are within the ambit of the job for which any particular employee was hired. It is not for the employee nor for the court to consider the wisdom of the procedures. The employer is the boss and it is an essential implied term of every employment contract that, subject to the limitations I have expressed, the employee must obey the orders given to him.

It is not an answer for the employee to say: “I know you have laid down a rule about this, that or the other, but I did not think that it was important so I ignored it”.

But it may be an answer, on the question of whether disobedience is repudiatory, that the employer so conducted himself that the reasonable man would conclude, and the employee did in fact, conclude, that the employer considered the rule of little or no importance. For instance, if an employer had a rule that equipment was to be covered at the end of the day and the rule was ignored by the employees to the knowledge of the employer, he could hardly come to work one morning and discharge the lot for failing to obey the rule.

To justify the dismissal on such grounds there is an onus on the employer to establish there were acts wilfully carried out by the employee in defiance of clear and unequivocal

–  –  –

instructions of a superior or refusal to carry out policies or procedures well known by the employee as being necessary in the fulfilment of the employer’s objectives.

–  –  –

Serious or gross incompetence gives rise to the right of an employer to dismiss the employee. Where incidents are sufficiently serious, the plaintiff may be dismissed without warning.

–  –  –

(viii) Absenteeism or Lateness Even with respect to employee acts of theft and dishonesty, the employer must show that it has not “accepted or condoned” the conduct by not dismissing the employee or delaying in dismissing the employee.

In most cases, to succeed in dismissing an employee for incompetence, absenteeism or intoxication, the employer must show that it has warned the employee of the consequences of his conduct (that is that the employee’s job is in jeopardy) and given the employee a reasonable time to correct the conduct. Again, the employer must not delay in taking action.

–  –  –

In carrying out a dismissal, an employer must not act in “bad faith”. Bad faith has not been

defined definitively. The Supreme Court of Canada, however, has stated:

The obligation of good faith and fair dealing is incapable of precise definition.

However, at a minimum, I believe that in the course of dismissal employers ought to be candid, reasonable, honest and forthright with their employees and should refrain from engaging in conduct that is unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive.

The obligation not to act in bad faith is not an independent obligation, there must also be a wrongful dismissal. Therefore, if an employer provided reasonable notice but acted in bad faith when carrying out the dismissal, there is no course of action by the employee.

–  –  –

Where an employer is found to have acted in bad faith, the notice period to which the employee

is entitled is increased. The purpose of so doing is twofold:

–  –  –

In British Columbia, at least one Court has commented that the duty imposed upon an employer is “not [to] treat an employee unfairly or to create impediments to his or her search for new employment”. The Court is careful not to define too rigidly the types of conduct which may constitute bad faith, nor does the Court merely look at the effect of the conduct on the employee’s ability to find alternative employment. Conduct which does not affect the ability to find alternative employment may be compensated if it caused humiliation, embarrassment or damage to the employee’s self-esteem.

Some examples of conduct which amounted to “bad faith” are:

–  –  –

• alleging fraud and refusing to provide a letter of reference;

• making knowingly false misrepresentations about future employment prospects upon which the employee relies;

–  –  –

• hiring a replacement worker for an employee who was laid-off temporarily, without telling the employee of the termination;

• dismissing an employee for cause based upon allegations which were not investigated properly, were unsubstantiated and in some cases untrue;

and where the employee was employed in a specialized industry with little hope of finding alternative employment in the circumstances;

• abolishing the employee’s position while the employee was on vacation, and alleging and maintaining cause against the employee after his termination when it was clear that there was no basis;

–  –  –

• giving the employee ninety days to improve her performance, but then firing her after forty days for ‘incompetence’;

• making false statements to potential and an actual future employers;

alleging “illegality” and fraudulent conduct, which allegations were only abandoned shortly before trial; and suggesting, then withdrawing, an allegation that monetary incentives were being paid by the plaintiff to salesmen of the defendant;

• making unfounded allegations in the close-knit industry against the employee of forgery, insurance fraud, mortgage fraud, incompetence, unprofessional organisational abilities, disobedience, drug and/or alcohol abuse, and misuse of a cellular phone;

–  –  –

The following are examples of conduct which did not constitute bad faith:

• dismissing an employee without cause or reasonable notice;

–  –  –

• failing to provide a reference and making an allegation of cause which although not successful, was made on some objectively justifiable grounds, coupled with the fact that there was no evidence of emotional trauma or “hard ball” tactics on the part of the employer;

–  –  –

• offering a “take-it-or-leave-it” offer of income continuance, then later attempting to induce the employee to accept the minimum statutory payment in settlement of his claim, where the employer was forthright and did not allege cause;

–  –  –

• delay in paying the statutory minimum severance pay and vacation pay;



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