In Vancouver Island Health Authority v Safaei and British Columbia Human Rights Tribunal, 2025 BCSC 340, the employee was terminated during the probationary period. The employee then filed the “trifecta” of complaints against the employer: a union grievance, human rights complaint, AND a WorkSafeBC claim for mental disorder arising from alleged bullying and harassment in the workplace. The WCB claim was adjudicated first, and WorkSafeBC found the employee was not credible and that there was no bullying and harassment that would amount to a “traumatic” workplace event which is required by the legislation before a claim will be allowed. The employee appealed all the way to WCAT (the highest level of appeal for WCB matters) and her appeal was denied.

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When the BC Human Rights Tribunal finally got around to reviewing the complaint, the employer applied to dismiss the case on the basis that the matter had already been adjudicated through the WCB process and the employee should not a get a “second kick at the can” through the human rights process. The Tribunal declined to dismiss the claim, saying that the WCB process did not consider the Human Rights Code and therefore the case was not the same. The employer sought a judicial review through the courts and the BC Supreme Court agreed with the employer. Of importance, the Court said the law is clear that where one administrative decision-maker decides facts and reaches conclusions about the workplace, those conclusions will be binding on subsequent decision-makers from other tribunals and/or courts. For example, if WCB or WCAT decides that there was no bullying and harassment after hearing the employee’s evidence, then the employee cannot seek to get an opposite ruling from the Human Rights Tribunal.

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As the WorkSafeBC process is often the first one engaged in employee complaints (including Prohibited Action, bullying and harassment, or the new Duty to Maintain Employment/Duty to Accommodate) it is extremely important for employers to pay careful attention to the process and participate meaningfully in the claims process. The decisions of WorkSafeBC could have far-reaching ramifications beyond the WCB claim, including creating a binding precedent for future complaints made through other processes.

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In Pickering v Workers’ Compensation Board, 2025 BCSC 376, the BC Supreme Court ruled that the "labour relations exclusion" for a WCB mental stress claim was unconstitutional. The exclusion normally functions to prevent a worker from getting WCB benefits on the basis of a mental disorder if the mental injury was caused by a decision of the worker’s employer relating to the worker’s employment i.e. a decision relating to performance management, termination, investigations, etc. In a long and complex decision, the Court ruled that this the labour relations exclusion was arbitrary because it did not distinguish between employer’s actions that were taken in good faith and those that were not. In the result, section 135(1)(c) of the Act must be "read down" to correct the arbitrariness. This means that the provision must be read to only apply to management decisions on "generic processes" and actions that are taken in good faith. As a result of this change, employers must now show that the decisions relied on for the exclusion were in good faith and fell within the category of generic processes, such as routine performance management. We expect that this change will result in a lower barrier for the acceptance of mental stress claims and ultimately higher costs for the employers who pay the premiums.

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In 2023, British Columbia introduced the Short-Term Rental Accommodations Act, with new regulations set to take effect in 2025. As of January 20, 2025, short-term rental hosts must enroll in a provincial registry if they advertise on platforms such as Airbnb or VRBO.

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Hosts must register online via a BC Registries or BC Services Card account. Upon approval, they’ll receive a provincial registration number, which must be displayed on all of their listings by May 1, 2025, or the listings will be removed.

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Starting June 1, 2025, short-term rental platforms such as Airbnb and VRBO must block, prevent new bookings, and cancel existing bookings for unregistered rentals.

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Annual registration fees vary depending on the property’s occupation status, and are as follows:

• $100 – If the host resides at the property.
• $450 – If the host does not reside at the property.
• $600 – For an entire strata hotel.

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There are early registration discounts of 50% off if registered by Feb 28, 2025, and 25% off by March 31, 2025. To avoid disruptions, hosts should register before May 1, 2025.

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Thinking about buying a business in British Columbia? Take heed of the lessons learned by an employer in a recent decision by the BC Employment Standard Tribunal (“Tribunal”) in Overstory Media Inc. (Re), 2024 BCEST 109. Despite never agreeing to hire the vendor’s employees, the purchaser of a business was nonetheless found liable to the employees for unpaid wages of over $270,000.

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Facts

On September 21, 2022, Overstory Media Inc. (“Overstory”) closed the purchase of the physical operating assets and intellectual property of Vancouver Free Press Publishing Core (“VFP”). The purchase agreement was an asset purchase agreement and required that VFP terminate its employees as Overstory would not be taking them on after the closing.  However, VFP failed to terminate the employees until approximately a week after the closing date. In terminating their employment, VFP did not provide its employees with their entitlements under the BC Employment Standards Act (the “ESA”), including wages and termination pay.

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Unsurprisingly, nine VFP employees filed an employment standards complaint against Overstory for unpaid wages and termination pay.

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Employment Standards Tribunal Decision

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Even after taking into consideration the explicit terms of the purchase agreement and the fact that Overstory did not offer employment the VFP employees, the Tribunal found that section 97 of the ESA deemed the VFP employees to have continued their employment with Overstory on the closing date. The Tribunal further found that section 97 does not require the negotiation of new employment contracts between affected employees and the purchaser. In other words, there is no requirement for a formal offer of employment to be made and accepted for section 97 to apply. Section 97 reads as follows:

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If all or part of a business is disposed of, or the business continues to operate under a receiver or receiver-manager, the employment of an employee of the business is deemed, for the purposes of this Act, to be continuous and uninterrupted by the disposition or receivership, as applicable.

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As a result of section 97 under the ESA, Overstory was found liable to nine VFP employees for a total of over $270,000. This award represented unpaid wages, termination pay, and even earned vacation pay from when the employees were on VFP’s payroll (i.e. prior to the closing).

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‍Takeaways

In structuring asset purchase agreements, the parties should carefully plan and consider the employment law implications of the transaction. If purchasers do not want to keep the vendor’s employees, steps must be taken to terminate the employees prior to closing the transaction and the parties must clearly outline who is responsible for the cost of the termination in the purchase agreement. Purchasers should be mindful that in BC, even if they do not offer or agree to employ the vendors’ employees, they could still be found liable for breaches of employment standards committed by the vendor.

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Our employment and labour lawyers are heavily involved in various local BC Chambers and Policy Committees, attend roundtable discussions and present webinars regularly on the Employment Standards Act and related legislation. We communicate all these updates to our clients and readers on our Employer Resources Portal and through monthly Newsletters. If you have any questions or need assistance revising your employment contracts or policies, please reach out to Chris Drinovz at [email protected], or submit a Contact form.

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In the recent decision of Basic v. Solid Rock Steel Fabricating Co. Ltd., 2025 BCSC 287, the British Columbia Supreme Court sided with the employer finding that there was just cause to dismiss Mr. Basic after more than 20 years of employment, after Mr. Basic committed serious acts of time theft and insubordination.

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Facts

Mr. Basic was employed by Solid Rock Steel Fabricating Co. Ltd. (“Solid Rock”) for more than 20 years. At the time of Mr. Basic’s dismissal, he was employed as a Project Manager and was 57 years old.

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Mr. Basic originally joined Solid Rock in 1992 as a Draftsman but quit his employment in 2000 to take up work with a competitor. Four years later, after being laid off from his then employer, Mr. Basic rejoined Solid Rock.

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At the time Mr. Basic rejoined in 2004, it became a material term of Mr. Basic’s employment with Solid Rock that he was required to work 1,864 hours annually, and to keep track of his hours worked despite being a salaried employee. It was understood that this requirement to track hours was in order to reconcile Mr. Basic’s hours on an annual basis to ensure that any additional hours over and above what his salary otherwise covered would result in additional compensation to Mr. Basic either by way of wages, additional time off or gift cards. As testified by Mr. Basic, the extra hours reporting policy was an “honour policy” (i.e. Solid Rock expected, and trusted, Mr. Basic to honestly report his hours worked). At trial, none of the reconciliations disclosed that Mr. Basic had been in the practice of recording his unpaid coffee breaks as extra hours.

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While neither Mr. Basic nor Solid Rock’s owner, Peter Steunenberg, testified whether paid lunches or coffee breaks were discussed at the time of Mr. Basic’s hiring, Mr. Steunenberg testified that Solid Rock never provided paid coffee or lunch breaks to its office staff. On this basis, Justice Giaschi found that paid breaks were not a term of Mr. Basic’s employment. This finding will become important later.

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In 2015, Mr. Basic and Solid Rock entered into a written contract of employment (the “2015 Agreement”). The 2015 Agreement contained, among others, a term relating to the expected minimum hours Mr. Basic was to work and a provision seeking to set out Mr. Basic’s entitlements in the event of a dismissal. In 2018, Solid Rock attempted to have Mr. Basic sign a new employment agreement but, despite threats of termination, Mr. Basic refused to sign. Solid Rock did not proceed with terminating Mr. Basic and instead continued the working relationship.

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In 2022, Solid Rock had a performance review meeting with Mr. Basic as part of newly implemented company procedures. In this meeting, Solid Rock brought up with Mr. Basic what it viewed as a discrepancy of 30 minutes per day in Mr. Basic’s time reports. Mr. Basic testified that he advised Solid Rock that this was for his two coffee breaks per day which he did not take. Solid Rock testified that they told Mr. Basic he was not entitled to paid coffee breaks and that he was to stop including these on his time reconciliations. Mr. Basic argued that the removal of counting his paid coffee breaks was a change to the terms of his employment, which the Court rejected.

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In October 2023, Mr. Basic contacted his General Manager, Jose Antonio Hernandez, to advise that he had approximately two weeks of vacation left and would be booking his Christmas holidays soon. Mr. Basic was subsequently approved for his two weeks of holidays from December 4 – 15, 2023.

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One month later, Mr. Basic emailed Mr. Hernandez again, this time attaching his calculation of extra hours for 2023. Mr. Basic went on to say, not request, that he would be coming in for less than five hours the following day, but then would be off for the remainder of the year. Mr. Basic did not have prior approval for this arrangement, nor had he mentioned it to Solid Rock prior to his proposed final day. Notably, Mr. Basic’s calculation of his additional hours continued to include the 30 minutes per day for coffee breaks which he was already warned to remove.

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Mr. Hernandez responded advising that Solid Rock did not, and could not, approve the additional time that Mr. Basic requested. He further confirmed that the additional hours which Mr. Basic claimed would be verified, reminding him that lunches were unpaid.

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The parties had differing recollections of the meeting that ensued the following day, but what could be agreed upon is describing it as “heated”. Mr. Basic advised Mr. Hernandez that he did not wish to be paid out for the extra time due to tax reasons. Mr. Hernandez advised Mr. Basic that, because of the last-minute nature of his request, Solid Rock could not approve the extra requested time off and that his extra hours would be paid out. Mr. Hernandez testified that Mr. Basic said he was “going to take the time off whether it was approved or not” before leaving the meeting. Following a further email from Mr. Basic that evening reiterating that he wished to take the time off rather than be paid out, Mr. Hernandez advised Mr. Basic that Solid Rock did not agree with his comments but if he was adamant in taking the time off, they would expect him in the New Year.

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While Mr. Basic was away in December 2023, Mr. Hernandez attempted to verify Mr. Basic’s extra hours for 2023. He did so by using security camera footage to determine when Mr. Basic arrived at work, took lunch, and left work each day. While the security camera footage only covered October 2023 onwards, Mr. Hernandez was able to rather quickly confirm that rather than have worked additional hours during this period, Mr. Basic actually owed Solid Rock nearly 30 hours for time which he claimed to have worked but did not.

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When Mr. Basic returned on January 2, 2024, Solid Rock terminated his employment. While Solid Rock advised Mr. Basic that he was being terminated for just cause, on account of theft, dishonesty and “gross insubordination”, Mr. Basic was provided with a gratuitous lump sum payment by Solid Rock in any event. However, Solid Rock made clear to Mr. Basic of the hours which it alleged Mr. Basic owed Solid Rock, for being paid for time that was not actually worked and the seriousness of his actions.

Following his dismissal, Mr. Basic commenced an action for wrongful dismissal, alleging that Solid Rock did not have just cause for his dismissal and that he was subsequently owed damages as a result.

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The Court Decision

Overall, the Court found Mr. Basic to be far less credible in his recollection of the events, including key conversations surrounding the coffee breaks, which was detrimental to Mr. Basic.

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The Court found that it was a fact that Mr. Basic’s employment never included that he was entitled to 30 minutes of paid breaks per day, nor that he could record these as working time on his reconciliations. The Court further found that, even if Mr. Basic had any doubt of either of these terms, that doubt would have been absolved during the 2022 performance review meeting.

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Turning to the allegations of cause levelled against Mr. Basic, the Court had “little difficulty” determining that Solid Rock had proven, on a balance of probabilities, that Mr. Basic engaged in dishonest conduct, namely time theft. The Court further found that Mr. Basic’s conduct was deliberately deceitful and dishonest.

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Looking at whether Mr. Basic’s conduct warranted immediate summary dismissal, the Court noted “several factors” as being particularly significant, which included:

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• Solid Rock’s practice of compensating employees for extra hours was “unique” and a “significant perk” of employment;
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• The recording of extra hours worked was based on an “honour system”, which was admitted by Mr. Basic. Solid Rock trusted its employees to accurately record and submit their hours; and
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• Mr. Basic was expressly told in the 2022 performance review meeting that he was to stop recording the 30 minutes per day as time worked for coffee breaks not taken.

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The Court had no trouble in finding that Mr. Basic’s conduct was deliberate, flagrant, serious and not only dishonest, but also fraudulent. Any arguments of condonation or lack of warnings was swiftly dismissed by the Court.

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Looking at whether Mr. Basic’s conduct in disobeying the direction regarding recording coffee breaks and taking the additional time off in December 2023 was insubordinate, the Court was quick to agree with Solid Rock’s arguments. The Court noted that Mr. Basic was “clearly insubordinate” and that his insubordination was wilful, flagrant grave, and serious.

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In closing, the Court agreed that Mr. Basic’s (largely) unblemished tenure with Solid Rock was not enough, and that his actions were sufficiently serious to warrant an immediately dismissal for just cause. As a result, Mr. Basic’s action was dismissed.

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Takeaways

This case is part of a trending topic in the employment law community – time theft. As an employer, it is important to take away from this decision that having clear policies regarding employee hours, or workplace policies in general for that matter, can be critically important in addressing employee-related issues later on. On this same note, any potential performance issues should be swiftly addressed as they arise. While just cause is still an extremely high bar for employers to reach, it is not impossible if approached properly. Contacting an employment lawyer as soon as possible can be key to ensure this threshold can be met.

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If an employer jumps the gun and claims just cause where no such cause may exist at law – this can be a costly lesson for employers. Making allegations of just cause to deprive an employee of even their minimum entitlements under the British Columbia Employment Standards Act, where no such serious conduct exists, could lead to an award of punitive damages against the employer.

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As an employee, this tells a cautious tale of ensuring policies are clearly articulated and followed. While there has been no cost determination on this decision yet, Mr. Basic could very well be on the hook for not only his own legal fees for this unsuccessful trial, but potentially Solid Rock’s legal fees after having his action dismissed.

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Effective January 1, 2025, the federal government changed the law to lower the federal criminal interest rate to 35% annual percentage rate (APR), which equals about 42% effective annual rate (EAR) down from the previous EAR of 60% (equal to roughly 48% APR). These changes make it a criminal offence to offer loans at any interest rate above 35%, with some exceptions.

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3 exemptions remain:

1. commercial loans,
2. pawnbroking loans, and
3. payday loans.

The amendments broaden the scope of activities covered by the criminal interest provision, now including offering or advertising credit at criminal rates, not just entering into an agreement.

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The new criminal interest rate does not apply to agreements made before the amendments came into force. Loans that complied with the previous laws when originally entered into are unaffected by the changes. However, clients should seek legal advice when modifying such agreements to ensure continued compliance with the new laws. Lenders and brokers should be aware of these changes and take the time to learn their responsibilities under the new rules. Violations can result in fines of up to $25,000, or imprisonment of up to 5 years.

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Understanding how copyright interacts with employment relationships is important for employers, as it helps them protect their business interests and maintain control over copyrighted works created within their organizations. This article outlines some of key employer rights and considerations regarding copyright in Canada.

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Copyright and the Copyright Act

Copyright in Canada is governed by the Copyright Act (the “Act”). The Act provides authors with exclusive rights over their original works, such as the right to reproduce, distribute, and license their creations. It is noted that Copyright is not limited to “artistic” works. Copyright extends to works valuable to businesses, such as website contents, catalogs, logos, etc.

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Employer Ownership of Copyright: The Default Rule

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In the context of employment, the Act includes provisions that alter the default ownership rules. Under section 13(3) of the Act, copyright in works created by employees in the course of their employment typically belongs to the employer, unless there is an agreement to the contrary. In short:

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1. The author of the work must be in the employment of another person;
2. The work must be made by the author in the course of employment; and
3. There must be no agreement to the contrary.

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In the absence of an employment relationship, the general rule in Canada is that the author owns the copyright in an original work. Accordingly, when a work is created by an independent contractor, the above does not apply and the contractor retains the copyright. Payment for services does not translate into the transfer or ownership of the copyright in the work. In order to own a work created by a contractor, a written agreement explicitly transferring the ownership of the copyright must be implemented. Without such an agreement, the ownership in the copyrighted work is not transferred, and the rights remain with the author.

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Written Agreements and Customizing Copyright Ownership

We recommend employers to use written agreements to clarify the terms and conditions of employment, including copyright ownership. Employment contracts can include terms that

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• Confirm that all works created during employment are owned by the employer;
• Extend employer ownership to works created outside regular duties but using company resources; and
• Address moral rights, which allow authors to protect the integrity of their works.

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Even if the employer owns the copyright, employees retain their moral rights unless they explicitly waive them. Moral rights are granted exclusively to the author and include the author’s right to maintain the integrity of the work and the right to be cited as its author. Importantly, moral rights cannot be assigned, even if the employer is to be the owner of the copyright.  Accordingly, it is important that any employment agreement provide for a waiver of the employee’s moral rights.

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For independent contractors, contracts should explicitly include clauses transferring copyright ownership to the employer.

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Best Practices for Employers

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To protect their rights and ensure compliance with copyright laws, employers should:

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1. Draft clear employment and contractor agreements, including specific terms addressing copyright ownership and moral rights waivers.
2. Ensure proper classification of workers: distinguish between employees and independent contractors.
3. Educate employees: provide training on the organization’s IP policies, especially regarding the use of company resources and the creation of works.
4. Consult legal professionals: work with legal counsel to ensure contracts and policies align with the Act.

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Conclusion

In Canada, employers generally hold copyright in works created by employees in the course of their duties. While so, written agreements help avoid disputes and ensure clarity. By understanding their rights under the Act and implementing written agreements, employers can safeguard their rights while maintaining productive working relationships with employees and contractors.

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Note to Readers: The information in this article is not legal advice. If you are looking for legal advice in relation to a particular matter, please contact Junki Hong.

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Employers have several legal obligations and, as explained in Workplace Policies 101 by Jenson Leung, having a robust set of polices is important to meet those obligations.

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Understanding how certain key terms are defined in those policies, and how the terms are interpreted, will help to ensure that you and your employees know what conduct is not acceptable in the workplace.

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There are several sources of law and policy that define harassment and bullying and discrimination.

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Bullying and Harassment

WorkSafeBC policy defines harassment and bullying as

any inappropriate conduct or comment by a person towards a worker that the person knew or reasonably ought to have known would cause that worker to be humiliated or intimidated, but excludes any reasonable action taken by an employer or supervisor relating to the management and direction of workers or the place of employment.

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(reference Policy Item P2-21-2 Employer Duties - Workplace Bullying and Harassment)

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The Workers’ Compensation Appeal Tribunal (WCAT), through its consideration of appealed claims for injury compensation, has said that bullying and harassment is interpersonal conflict which, in order to constitute a significant workplace stressor, must contain an element of abusive or threatening behaviour (Decision # 2014-02791).

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Discrimination and Sexual Harassment

If harassment in the workplace involves conduct that targets personal characteristics like race, ancestry, disability, Indigenous identity, sex, gender expression and identity and/or sexual orientation then the BC Human Rights Code offers protection to employees.  The BC Human Rights Tribunal allows employees to make complaints against the individual who committed the discrimination and/or sexual harassment.

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Examples of discrimination and harassment in the workplace, as decided by BC Human Rights Tribunal, include:

• Comments and unfounded allegations that are based on stereotypes (2024BCHRT 204, 2023BCHRT 137).
• Treating someone differently because of a personal characteristic (2022BCHRT 98, 2014BCHRT 150).
• Disparaging comments based on false assumptions (2022BCHRT 68, 2011 BCHRT 310).
• Making racially charged comments, slurs and/or jokes (2022BCHRT 129, 2018BCHRT 238, 2007 BCHRT 197).
• Racially profiling someone in the workplace (2008BCHRT 293).
• Touching in sexual way, showing or displaying porn, repeatedly asking someone for a date, imposing adverse consequence because someone said no to sexual advances (2020BCHRT 138, 2019BCHRT 97).

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Are employers liable for an employee’s bullying and harassment and discrimination in the workplace?

If an employee’s misconduct was known to the employer, and the employer failed to discipline it, or otherwise condone the employee’s misconduct, an employer can be found liable for the actions of the employee.  This is known as vicarious liability and Robichaud v. Canada (Treasury Board), 1987 CanLII 73 (SCC), [1987] 2 S.C.R. 84 is the leading case.

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In 2024, the BC Human Rights Tribunal decided a case that found an employer was not vicariously liable because they properly investigated the employee’s misconduct and acted appropriately. Based on that decision, the following recommendations will minimize findings of vicarious liability:

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Have workplace policies that are clear that bullying, harassment, and discrimination in the workplace is not tolerated, and the policies are:

• Updated regularly.
• Accompanied by mandatory training and/or regular reminders about the policies.
• Warnings about the consequences of policy breaches, including potential discipline for breaches of the policy.
• Have a misconduct complaint investigation process that:
  • Communicates confidentiality, quickly and clearly to the parties.
  • Interviews all the parties including the complainant, the offending employee (the respondent), and relevant witnesses.
• Ensures that employee mental health is taken care by:
  • Offering an employee assistance program.
  • Acknowledging the employer’s duty to accommodate. (2024 BCHRT 119)

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By considering and implementing workplace policies, employers can easily meet their legal obligations and minimize the risk associated with employee misconduct.

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To learn more about KSW Lawyers, how we help clients, and how I can assist you with your workplace investigation, workplace policies or human rights matter, call (604) 591-7321 or visit kswlawyers.ca or email to [email protected]

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Note to Readers: This is not legal advice. If you are looking for legal advice in relation to a particular matter please contact one of our group members. We communicate all these updates to our clients and readers on our Employer Resources Portal and through monthly Newsletters.

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A well-written employment contract is useful both for employees and employers.  If drafted with proper care and consideration, a written employment agreement serves to clarify the expectations for both parties during the term of employment, and at its end.  If drafted poorly, a written employment agreement, instead of limiting potential issues, may instead exacerbate them.

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Below, I have outlined a few common mistakes I have seen in my practice.

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Lack of Consideration

A common pitfall for employers arises when the employer attempts to put a new employment contract into place after an employee is already working for them, without offering anything to the employee in return.

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This is a problem, as when you modify a contract, failing to provide consideration (typically in the form of a raise, or a one-off bonus)  for the new agreement renders it unenforceable.  

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While the BC Court of Appeal in Rosas v Toca, 2018 BCCA 191 had appeared to suggest that consideration was not required to modify an existing contract, following Quach v Miltrux Services Ltd., 2020 BCCA 25, the law in BC appears to be that an employee must receive fresh consideration for a revised employment agreement to be binding.  Accordingly, if the employer fails to provide fresh consideration when putting such a contract in to place, the entire agreement can be found unenforceable.  

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Changed Substratum

Where an employment relationship evolves away from the position set out in a contract of employment, typically through change of role, increased compensation, or additional responsibilities, the court will sometimes hold that it would be unfair to apply an existing employment contract, on the basis that the ‘substratum’ of the employment agreement has changed.

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In such a case, unless the contract includes a clause which clearly and unequivocally shows that the contract was intended to be binding even if the substratum changes, the court will find that the terms of the written contract no longer apply, as circumstances are different than those contemplated by the parties at the time of contracting.  

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Clauses Contrary to Statute

The courts have made clear that employment contracts differ from other commercial agreements due to the importance of employment in a person’s life.  As a result, the court will often interpret agreements in a way designed to maximally protect an employee’s interests, particularly around termination clauses.

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Occasionally, employers will attempt to have an employee enter into an agreement which offers less than what an employee is entitled to under the applicable employment legislation; in BC, that legislation is typically (but not always), the BC Employment Standards Act.  In Machtinger v HOJ Industries Ltd., the Supreme Court of Canada held that, where parties attempt to contract out of the minimum termination notice period set out in the ESA, the termination clause is null and void, and the employee is instead entitled to common law notice.

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Drafting Errors

The use of imprecise language can make the result of a contract something other than what is initially intended by one (or both) of the parties.  

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By way of example, in the recent case of Briggs v ABC Insurance Solutions Inc., 2024 BCSC 1918, the employer and employer had entered into an agreement that read as follows:

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The Employee and the Employer agree that reasonable and sufficient notice of termination by the Employer is the greater of two (2) weeks or any minimum notice required by law.

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While the employer’s intent in drafting the clause was likely to restrict the employee to the minimum notice period under the ESA, the court in Briggs found that the reference to ‘minimum notice required by law’ created an ambiguity, as there was no clear reference to the ESA.  In light of the lack of clarity, the court found the clause was unenforceable.  In the result, instead of being entitled to only two weeks wages, the employer was found liable to pay the employee for 4.5 months of wages in lieu of notice.  

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Another error, particularly serious in the case of employees who receive bonuses, commissions, or shares that vest as part of their compensation, is where an employer uses imprecise language on whether bonuses remain payable during the period of reasonable notice.  In Koski v Terago Networks Inc., 2021 BCSC 117, the following clauses were found to create ambiguity as to whether a bonus was payable which vested during the period of reasonable notice:

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. . . any . . . reasonable notice period applicable to an employee who has been dismissed by the Company (whether with or without cause) that overlaps with a bonus payout date shall not be considered as satisfying the "actively employed" requirements of the Program.

. . .. As such, employees who have been terminated or who have resigned prior to the bonus payout date are not eligible for any bonus payments referenced herein.

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In the result, the employee was entitled to the bonus during the notice period, despite the employer’s arguments that the bonus plan, as drafted, made the employee ineligible.

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TAKEAWAYS

There are many potential issues which can arise when preparing employment contracts.

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Employers should consult with legal counsel before preparing a new employment contract or revising an existing contract, to ensure that the agreement  will be binding and will accomplish the goals they have in mind.  

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Employees who are being asked to signed an employment agreement should consult with a lawyer before doing so, so that they have a clear understanding of its impact on their legal rights.

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Note to Readers: This is not legal advice. If you are looking for legal advice in relation to a particular matter please contact one of our group members. We communicate all these updates to our clients and readers on our Employer Resources Portal and through monthly Newsletters.

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What Are They?

Nowadays, more and more business owners and HR professionals are becoming aware of the need to have properly drafted employment contracts for their workplaces.

Something that is often given less attention however is workplace policies (also sometimes referred to as “employee handbooks”). This article is intended to serve as a broad refresher on what workplace policies/handbooks are, and what they aren’t.

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It’s important to first remember that an employee handbook is not the same as an employment contract. Although workplace policies can be used to establish general procedures and expectations, they are generally not the best way to establish key work conditions such as hours, overtime, severance and vacation.

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Minimum Requirements

All employers in BC are required by WorkSafeBC to have, at minimum, “procedures” for responding to reports or incidents of bullying and harassment in the workplace. A written bullying & harassment policy is often the best way to do so. As with all workplace policies however, it is critical that any bullying & harassment policy be consistently applied and followed by the company (subject, of course, to human rights considerations).

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Establishing Policies

This leads to another key aspect of workplace policies: they must be actually followed to be effective. In fact, failing to follow written policies may actually increase rather than decrease potential liability for a business. It is therefore important to avoid blindly implementing a “cookie cutter” policy handbook since policies that are aspirational or inapplicable will often serve to simply increase ways that the company’s conduct will be scrutinized in the event of, for example, a human rights or WorkSafe claim.

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Some Typical Policies

As noted above, it’s important to ensure that any workplace policies are tailored to your specific workplace. Some “standard” or “recommended” policies might be totally inapplicable to a workplace, and some less common ones may be warranted depending on the business’s needs. An employment lawyer’s role is partly to help you determine what policies you need vs. what policies you don’t.

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With that caveat out of the way, some of the more common types of policies that can be worth considering include policies on:

1. bullying and harassment;
2. employee conduct;
3. health and safety;
4. remote work;
5. confidentiality/protection of information;
6. privacy;
7. overtime;
8. attendance;
9. company devices;
10. and drug/alcohol.

The above list is by no means an exhaustive (or universally applicable) list since the needs of, for example, a manufacturing or construction business will be very different from the needs of a tech startup.

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Conclusion

At minimum, it is generally recommended to have in place a written bullying & harassment policy if you have employees in BC. Additionally, it is often good practice to ensure that you have policies in place for addressing at least key areas of concern for your business. For example, if your business has sensitive data that employees will be accessing while working remotely, you may want to consider having a policy restricting how they access and handle that data.

As always, our team of employment lawyers here at KSW Lawyers are happy to help with any questions.

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Note to Readers: This is not legal advice. If you are looking for legal advice in relation to a particular matter please contact one of our group members. We communicate all these updates to our clients and readers on our Employer Resources Portal and through monthly Newsletters.

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