In the recent decision of Render v ThyssenKrupp Elevator (Canada) Limited, 2022 ONCA 310, the Ontario Court of Appeal upheld the just cause dismissal of a high-level manager with 30 years of service after he smacked the buttocks of a female co-worker.

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Facts

The plaintiff worked for the company for 30 years and was in the position of Operations Manager at the relevant time. The incident occurred in the office when the plaintiff was with several co-workers joking around. He crouched down and placed his face near a female co-workers breasts for two to three seconds; as he was getting up, he then smacked her buttocks with a sweeping gesture.    

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The company conducted an investigation into the incident and terminated the plaintiff for cause pursuant to its harassment policy. The plaintiff sued for wrongful dismissal. He did not deny the touching, but claimed it was accidental and non-sexual. He argued that the termination was disproportionate given his 30 year history and otherwise blameless disciplinary record. He also referred to the company’s progressive discipline policy and said that a less discipline should have been considered first under that policy.

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Court Decisions

In the trial, the company showed that it had considered the possibility of less discipline, but deemed them not appropriate because continuing to employ the plaintiff would send a message to other female employees that the misconduct was condoned.

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The trial court, and subsequently the appeal court, upheld the termination for cause. The courts concluded that dismissal was a proportionate response given: the seriousness of the harassment; the existence of a zero-tolerance harassment policy; the employee’s role as a manager and the fact that he weas responsible for implementing the harassment policy; and the employee’s lack of appreciation and remorse for his conduct during the investigation. The court found these factors regardless of the fact that sexual banter and joking around was commonplace in this particular work environment.  

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Interestingly, at trial the successful employer was awarded legal costs of almost $75,000. However, the appeal court disentitled the employer to its costs for making statements to the media before the trial (through a press consultant) that were sensationalist and misleading. The behaviour was classified as misconduct as the court found it had the potential to taint the evidence and witnesses.

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Takeaways

This case follows other recent cases showing courts are increasingly unwilling to treat any instance of sexual touching or harassment as “minor” and uphold a just cause dismissal where a single instance of such conduct is proven. This is amplified where the perpetrator is part of management and responsible for setting an example or enforcing the very policy they have breached. In addition, a half-hearted apology or lack of remorse during the investigation will be a relevant factor.  

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Notwithstanding this precedent and the judicial trend, termination for cause remains a very high bar. The Supreme Court of Canada test of McKinley still requires employers to consider the context of the situation, including the employee’s years of service, any past record, the seriousness of the conduct in issue, and existing workplace policies. In addition, the employers must consider the possibility of lesser discipline and whether it is appropriate in the circumstances under a consideration of proportionality.    

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Employers should consider their current policies and ensure they have strong anti-harassment and discrimination policies in place with appropriate training, in addition to well-developed processes and procedures for the investigation of complaints. A good policy and a solid investigation will go a long way in the event of a lawsuit. Finally, if litigation is contemplated, employers should seek legal advice before making any public statements about the case.

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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.

A labour arbitrator appointed to hear an employer grievance for damages in defamation against its union, Unite Here Local 40, has awarded the employer $500,000 but would not award costs.  Yes you read that right — a labour arbitrator operating under a collective agreement and not a court has made that award.  Not only is the amount of the award stunning and potentially crippling to Local 40 it shows just how far the courts, applying the Weber decision have refused to take jurisdiction on any matter that is even remotely connected to the collective agreement. In an earlier award the Arbitrator decided he had jurisdiction because “if the statements were defamatory they would constitute bad faith in the administration, application and performance of the collective agreement which violated the principles laid down in Bhasin v Hrynew, 2014 SCC 71, [2014] 3 SCR 494, and the dispute was therefore arbitrable.” [Page 2]

The full decision is available here: 2022CanLII 51879 (BC LA) | Civeo Corporation v Unite Here, Local 40 | CanLII

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Civeo Corporation is an international company that provides housing to construction projects including the Kitimat Sitka Lodge in Kitimat.  It had a collective agreement applicable to employees at the Kitimat LNG project.  The collective agreement in question ran from 2018 and was in effect in 2021 when the defamatory statements were made.  Local 40 had a dispute with Civeo as it wanted it to open up the collective agreement and increase wages and provide better hiring practices.  To support its agenda it tried to appeal to the public including the Indigenous public by posting the following on its web site:

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Civeo’s broken promises to First Nations people:

·      Low wages

·      Decrease in hiring of Indigenous workers over the past 2 years

This means that Civeo has not showed commitment to improving the living standards of Indigenous workers and their families.

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Civeo had prided itself in how it dealt with Indigenous peoples across the world and especially in Canada and Australia.  “All the lodges in Canada are in First Nations territory and good relations with First Nations are paramount” [page 12].  The Canadian Council for Aboriginal Business bestowed the company with a Gold Level certification in the Progressive Aboriginal Relations program [page 13]. Its commitment to a respectful and inclusive relationship with First Nations was a cornerstone of its success in obtaining contracts such as the one in Kitimat.

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Defamatory Statement Against Employer

In a 114-page decision the Arbitrator summarized his view of the alleged defamatory statement as follows:

An ordinary well informed Canadian reader would take from the website image a message that Civeo had broken its promises to First Nations people. Closer examination of the small print would reveal the message that Civeo had promised higher wages and delivered lower wages. It had promised a certain level of hiring and delivered something less. Further, I find that the message delivered by the impugned words was not just that Civeo had failed to make good on its promises but had cynically and deliberately provided something less.

I find there was an additional “sting” in the allegation, recognizable by the averagely well informed Canadian reader, which associates the employer’s conduct with the history of broken promises at a government level, which aggravates the defamatory meaning of the words used, and amplifies the degree of harm, and therefore damages if no defence is successful, caused to the employer’s reputation by association with this unfortunate history…

To this should be added that the impugned banner headline specifically identifies the “Broken Promises” of Civeo as promises made to “First Nations People” not just anyone. This connection, as well as the deliberate and pronounced prominence of the headline make it very clear as to what the union’s message was intended to convey. The message deliberately associates and links Civeo’s conduct to the historical undercurrent of broken promises to First Nations. Added to that is the fact that among the intended recipients of this message were indigenous people in the region and beyond, who of course were especially sensitive to this history.

In summary, taking the objective common-sense approach referred to above, I find that the impugned statement is defamatory in its natural and ordinary meaning. [pages 6/7]

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Employer Files Grievance

Civeo, through counsel, filed the grievance with the union in the following terms in August 2021:

On behalf of Civeo, we hereby file a grievance at stage 2 of the grievance procedure seeking damages and a cease-and-desist order regarding the following defamatory statements publicly communicated by your union:

Civeo's broken promises to First Nations people: Low wages; Decrease in hiring of Indigenous workers over the past 2 years.

This means that Civeo has not showed commitment to improving the living standards of Indigenous workers and their families. (See attached internet posting by Local 40)

These statements are patently untrue:

(i) The wages being paid are what were negotiated with your union in a letter of understanding covering the duration of the Sitka Lodge; (ii) Indigenous workers make up 47% of the total workforce; and (iii) As evidenced by the recent nomination of Civeo by the Haisla Indigenous community for the Indigenous Joint Venture/Partnership Award given by the Kitimat Chamber of Commerce, Civeo has shown a strong commitment to improving the living standards of Indigenous workers and their families.

Given the ongoing harmful effect of your false statements on the reputation and business interests of Civeo, we request a step 2 grievance meeting by telephone early next week. Please confirm the availability of your union for this meeting as soon as possible. In the meantime, to limit the liability of your union for the damages caused by your defamatory statements, we recommend that you take immediate steps to publicly retract these statements and apologize for making them. [pages 9/10]

Employer Reputation

The case is important not just for its detailed and scholarly analysis of the law of defamation including the various defences such as fair comment but also for its unique analysis of the importance of reputation when dealing with an employer’s ability to secure and maintain work when dealing with an Indigenous workforce:

Reputations are by their nature fragile, and the law of defamation is there to recognize this and protect reputations where appropriate. The comments earlier quoted from Zhong v Wu (supra) bear repeating:

The impression left by a libel on the reader may never be known but may last a lifetime, Philip Lewis, Gatley on Libel and Slander 8th ed., (London: Sweet & Maxwell, 1981) at 9.2. Thus, the presumption of damage recognizes the importance but fragility of a good reputation and the reality that the harmful consequences of defamation are difficult to prove, much less quantify. Zhong v. Wu, 2019 ONSC 7088, para 35. [Page 110]

Punitive Damages Awarded Against Union

In awarding punitive damages the Arbitrator relied on the following facts:

As in Barrick Gold, punitive damages are appropriate in this case, both because of the need to deter the union’s conduct, and because of the following factors:

1) The union’s contention that Civeo broke its promises to First Nations peoples is a complete fabrication;

2) The statement was published on the union’s website in order to maximize the statements’ distribution, well beyond anyone in the immediate region – including to anyone in the world doing a Google search of “Civeo”, whether they be potential employees, investors, business partners, contractors, governments, or otherwise;

3) The union did not remove this false or misleading, and defamatory, claim from its website for two months after Civeo wrote to the union to request that it take immediate steps to retract the defamatory statements and issue an apology;  

4) The union has refused to issue an apology or retraction, even after removing the statement from its website and continues to assert the truth of its defamatory message. It has indicated every intention, unless restrained, of repeating and continuing its message.

5) The union made these statements to pressure Civeo improperly to renegotiate terms of the Collective Agreement during the term of the agreement;

6) The union’s statements were made in an attempt to circumvent the provisions of the collective agreement dealing with disputes and disagreements between the parties; and

7) The threat to investors in furtherance of these vindictive statements compounds the culpability of the union’s conduct. [pages 106/107]

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The Arbitrator therefore awarded $400,000 General Damages and $100,000 punitive damages [page 111].

Civeo also argued that it was entitled to costs but couched its claim as seeking:

compensatory damages caused by the union’s unlawful and tortious conduct, which includes – amongst other things – the consultation and legal work performed in order to address and repair the harm stemming from the union’s unlawful conduct. [page 60]

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The claim was made in this fashion because section 90 of the Code precludes arbitrators from awarding the costs of the arbitration.  The Arbitrator decided to deny Civeo’s claim stating he decided to “err if at all on the side of adhering to the specific statutory direction provided by the Code” [page 64].  The Union argued that the Grievance should not proceed because the Arbitrator did not have jurisdiction only the court did.  If the matter had proceeded to court then the employer would have likely been entitled to at least taxable costs.

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EMPLOYER TAKEAWAYS

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Arbitration under a collective agreement has always been touted as being an inexpensive and expeditious way to deal with workplace disputes during the term of a collective agreement since employees cannot go on strike to pursue their grievances.  But as this case demonstrates that is a long-ago debunked fallacy.  Arbitrations are expensive and often complicated in terms of legal, evidentiary, and factual issues as this case truly demonstrates and is a prime example of that reality.

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At the same time those businesses that want to do business in Frist Nations territories and with First Nations might find the decision of interest as to the steps taken by Civeo to successfully nurture that relationship and its business model in Canada and Australia.

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Mike Weiler - Contact Info Here

June 30th, 2022

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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.

The minimum wage for all employees under BC provincial jurisdiction was raised to $15.65 per hour effective June 1, 2022.

What was the minimum wage in BC in previous years?

Previous rates and increases:

• June 1, 2018 – $12.65 per hour

• June 1, 2019 – $13.85 per hour

• June 1, 2020 – $14.60 per hour

• June 1, 2021 – $15.20 per hour

• June 1, 2022 – $15.65 per hour

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Does the increased minimum wage apply to all employers and employees in BC?

It depends! The minimum wage of $15.65 is set by BC Employment Standards and only applies to provincially regulated employers and employees under the jurisdiction of the BC Employment Standards Act. If you’re not sure whether your company should be paying this minimum wage to your employees, please contact our Employment & Labour team.

What employees are entitled to the increased wage?

All employees under the jurisdiction of the Employment Standards Act (part time, full time, casual, commission, hourly, salary etc.) are entitled to receive at least the minimum hourly wage, except for workers who have minimum wage rates established under the following sections of this Regulation (see details below):  

• Section 16 – live in camp leaders

• Section 17 – resident caretakers

• Section 18 – farm workers

Minimum wage applies regardless of how employees are paid – hourly, salary, commission or on an incentive basis. If an employee's wage is below minimum wage for the hours they worked, the employer must top up their payment so that it's equal to minimum wage.

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Does minimum wage still apply if an employee is paid on commission?

If an employee is paid on commission, and their income is below the minimum wage for the number of hours you work, they should be paid the difference between the commission earned and the B.C. minimum wage. This applies whether they are paid 100% on commission or part commission and part hourly wages.

What happens if my employer isn’t paying wages?

The BC Employment Standards Act requires employers to pay an employee’s wages at least twice per month. That income can’t be lower than the applicable minimum wage. If an employer fails to pay wages, employees can:

• File a complaint with the Employment Standards Branch: They will investigate their claim and order the employer to pay the money they owe. The Employment Standards Branch can then also launch an audit of the whole workplace to identify any other unpaid/underpaid wages and order them to be paid.

• Quit with severance: Employees may also be able to pursue a claim for constructive dismissal. In that case, they could be able to quit their job and leave with as much as 24 months’ pay.

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Some types of employees have different minimum wage rates

Liquor Servers

As of June 1, 2021, liquor servers must be paid the regular minimum wage rate for hours worked, in addition to any tips or gratuities they receive.

A liquor server is an employee who:

• Works mainly as a server of food or drink or both

• Regularly serves liquor directly to customers, guests, members, or patrons

• Works in a premises with a liquor licence

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Live-in camp leaders

• Live-in camp leaders are paid a daily rate for each day or part day worked - $125.06

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Live-in home support workers

Live-in home support workers are paid a daily rate.

• Prior to June 1, 2022, the daily rate was $113.50 per day or part day worked

• The current daily rate is $116.68 per day or part day worked

Resident Caretakers

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Trainees

Trainees working in B.C. are entitled to minimum wage like any other employee. A trainee is someone who is being trained by their employer to fill a particular role within a company.

Some types of employees are paid a piece rate

A piece rate is a rate of pay based on a measurable quantity of work completed. Employees must be told what the piece rates are before they start work. They may also be paid a different set wage for specific tasks (e.g. paid an hourly rate).

Find out about piece rates for farm workers.

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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.

In my previous recent article posted on our website on April 8th 2022, I reported on the significant changes the NDP made to the Labour Relations Code with the introduction of Bill 10.  Those changes included getting rid of the secret ballot vote in a union certification drive and allowing construction unions to raid every year.  You can read that article here.

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On June 2nd 2022 Bill 10 received Royal Assent and is now in effect and the law.  The labour pendulum has now for the most part  swung back to the NDP changes of 1992 as many of us predicted.  

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The Labour Relations Board has issued new directives on how certification applications will be processed to be consistent with the abolition of the secret ballot vote - available here.

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Non union and partially unionized businesses need to take these changes seriously and do what they can to minimize the chances a union will become certified for their business.  Chris and I will be putting on webinars/seminars in the near future on this topic and if you are interested in participating contact Chris at [email protected]. In the meantime, if you have any questions please feel free to contact us.

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Mike Weiler - Contact Info Here

June 14, 2022

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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.

FOR IMMEDIATE RELEASE
June 15, 2022

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KSW LAWYERS ACQUIRES THE SOLICITORS’ PRACTICE OF DNC INTEGRA LAWYERS
KSW lawyers is thrilled to announce the growth and expansion of their Abbotsford office location.

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Surrey, BC, June 15, 2022 – KSW Lawyers, a leading law firm in the Fraser Valley, has acquired the solicitors’ practice of DNC Integra Lawyers LLP, a highly regarded law firm serving individuals and businesses throughout Abbotsford.

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“We are so excited to finally be able to work together under the same umbrella. We have a deep respect for DNC Integra and are happy to unite our solicitors teams together to better serve the city of Abbotsford,” says Peter Unruh, Partner and lawyer of KSW Lawyers.

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KSW Lawyers will add DNC Integra’s experienced and dedicated solicitors to KSW Lawyers’ growing Abbotsford office as well as staff members. As each of the offices are mere blocks apart, all clients can expect the same quality and attention close to home and minutes from the original office of DNC Integra Lawyers.

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Christopher Drinovz, Partner and Lawyer at KSW Lawyers stated, “In considering this purchase, I was impressed by all the lawyers’ dedication to providing high-quality work to all their clients. This acquisition doesn’t only increase the wealth of knowledge to our firm, but our lawyers will also gain opportunities to meet new clients and advance in the city of Abbotsford.”

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“We are excited to announce the merger of the solicitors’ practice of DNC Integra Lawyers with KSW Lawyers!  Both law firms share the same values of exceptional client care at cost effective rates.  With this merger, our clients will have access to a greater number of lawyers and staff over a broader range of practice areas.  We are just as committed to our clients today as we were in 2010 when we first opened our doors in Abbotsford.  A big thanks to all our clients for your continued support” said Amrik Narang, lawyer at DNC Integra.

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KSW Lawyers was founded in 1973 and primarily serve clients in Surrey and the surrounding areas in matters of business law and real estate transactions. Since that time, however, our firm has grown in size and scope to be in a position to represent individual and corporate clients across a wide variety of practice areas. Today, we maintain office locations in Surrey, South Surrey/White Rock, Abbotsford, Langley and Vancouver, and our lawyers serve clients throughout the Fraser Valley and the Lower Mainland.

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Have you been fired, dismissed, or terminated?  Or informed by your employer that your job is about to change, or end if you do not agree to the change?  Have you experienced harassment or discrimination at work?

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If yes, we think you might have a bunch of questions, and we are here to help. Below are a number of informational articles to help you figure out where to start; please check these out, and then let us know if you would like our help.

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We recommend reading the following articles as well in order to get a better picture of your options:

1. All About Terminations and Employee Rights; and
2. How Much Severance Am I Owed?

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What Legal Options Do I Have After Being Wrongfully Dismissed?

If you think your employer breached your legal rights by firing you, you may have multiple legal options available. Generally speaking, wronged parties have two (2) years from the date of the wrong to bring a civil action in court; if you were terminated recently, you still have time to decide whether you would like to pursue an action.  We recommend diarizing for twelve (12) and eighteen (18) months from your termination date for you to re-evaluate your circumstances if you decide not to proceed right away.

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If your matter includes any component which may involve the Employment Standards Branch you only have 6 months to file a complaint. For Human Rights Tribunal issues, such a complaint needs to be formally submitted within the first 12 months.  

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Once your claim is filed with the appropriate decision making body, how long your matter will take to resolve is largely a function of how quickly scheduling the various required steps can happen.  While it is entirely possible, and even highly likely, for your matter to resolve without appearing before a judge, if your matter will require the decision of a judge, you should be prepared for the resolution to be more than one (1) year away.

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Importantly, even once the formal actions have been started, settlement at any time is always an option provided the parties can agree on terms.

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Am I Obligated to find a Replacement Job?

When you pursue your prior employer for severance, you have an obligation to make reasonable efforts to seek and secure comparable replacement employment; this is called the duty to mitigate.  Failing to fulfill your duty to mitigate can impact how much severance you may be able to recover.  If you have questions on how much severance you may be owed, please see our article How much Severance am I Owed?

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Importantly, along with your duty to mitigate, also comes the principle of set-off.  To understand how set-off works, please see our information below on What is Set-Off and How Does it Work? It is important not to shirk your duty to mitigate in an effort to avoid the set-off that will come with successful mitigation.

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Ultimately, most people are happier to be employed and earning an income rather than being involved in a law suit with a prior employer; so even though you might feel like you want your prior employer to pay you the maximum severance amount, we encourage our clients to think about the long run, and an overall positive result.

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What Is Set-Off And How Does It Work?

If you receive any replacement income during the notice period, your prior employer is relieved of its obligation to you accordingly, up to the amount that you would have received had you continued to be employed by you prior employer through the notice period; this includes any income you may receive from replacement employment.  To understand the notice period better, please see our explanatory notes on What is the notice period?

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If your replacement income falls short of what you would have received from your prior employer had you continued to be employed with it through the notice period, your prior employer’s obligation is to top up your income such that there is no material difference between your new wage and your old wage.

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Importantly, if your replacement income exceeds the income you would have received from your prior employer, your prior employer is relieved of any obligation to you as severance will no longer be owed.  To understand how severance is calculated, please see our article on How much severance am I owed?

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Replacement income can come from any number of sources, but the most common one is income received as a result of obtaining a replacement job.  We think the following simplified example will help:

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Example - Facts:

• Wage with prior employer: $20/hr

• Wage with new employer: $15/hr

• Notice period: 3 months (What is the Notice Period?)

• New job obtained after 1 month of unemployment

• Assume the same number of hours per week are worked with the new employer as with your prior employer

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In this example, assuming your claim for severance would be successful, your prior employer would be obligated for the first month of the notice period at your full wage of $20/hr, but from the time you start with your new employer, at the wage of $15/hr, your prior employer’s obligation reduces to only the $5/hr difference between your old wage and new wage.  

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Please see our article on How much severance am I owed for more.

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Will Future Employers Know Why My Last Job Ended?  Do I Have To Tell Them?

Future employers will only know the circumstances surrounding the end of your last job if someone tells them.  In most circumstances, you will not have any obligation to tell any future employer about the particulars of how or why your last job ended.

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When your prior employer issues the Record of Employment, that document is available to your prior (issuing) employer, you, and Service Canada; the Record of Employment is not a document that a future employer would be able to search for, or request, in the course of its decision to interview or hire you.

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While it is rare, sometimes people make unfavourable communications about other people following the end of an employment relationship.  Not only is saying, writing, or otherwise communicating negatively about someone else inappropriate, it also can result in the creation of a legal claim relating to defamation.

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We remind all employees that no matter how unpleasant the end of an employment relationship may be, to take the high road and move past the unpleasantness and onto more positive things.

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However, if you come to know that you are the subject of personal character damaging communications, and have or can acquire evidence of this, please let us know and we will be pleased to assist you in resolving the situation.

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Employment Lawyers Advising Workers

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We're on Your Side - Our skilled team of employment & labour lawyers have an outstanding reputation throughout the Lower Mainland and the Fraser Valley, and are dedicated to helping you resolve employment issues in the most efficient manner possible. If you have any questions or need assistance please reach out to our team today by submitting a Contact form.

Have you been fired, dismissed, or terminated?  Or informed by your employer that your job is about to change, or end if you do not agree to the change?  

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If yes, we think you might have a bunch of questions, and we are here to help. Below are a number of informational articles to help you figure out where to start; please check these out, and then let us know if you would like our help.

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We recommend reading the following articles as well in order to get a better picture of your options:

1. All About Terminations and Employee Rights; and
2. What Should I Do After Being Fired?

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How Much Severance Am I Owed

If you have been dismissed from your job, one of the first questions you are probably asking is how much severance does your prior employer owe you.

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First things first, if you have properly been dismissed for cause, it is unlikely that you will be entitled to severance.  If your employer says you have been dismissed for cause, please read our information on For cause dismissals – what employees need to know.

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It is also important to remember that severance is not a penalty your prior employer pays for ending your employment.

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Further, how much severance you may be entitled to could be limited by the language in your employment contract or agreement, if you have one.  We are happy to review your employment contract/agreement at any stage of your employment to enable you to have a better understanding of your legal relationship with your employer.

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In almost all other circumstances, questions about severance are reasonable to ask.  In the absence of a formal document, how much severance you may be entitled to is tied to what the common law notice period would be.  To understand how the notice period works a little better, please see our explanatory note below about what the notice period is.

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Generally, severance is calculated to proportionately include all components of your annual compensation you would have received had you continued to be employed  throughout the notice period (i.e. wages, annual bonus, commissions, phone/car allowance, health benefits, pension contribution etc.)

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For these reasons, even though severance and the notice period are not technically the same thing, you are likely to hear people use the words ‘severance’ and ‘notice period’ interchangeably.

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What is The Notice Period?

The notice period is the period of time between the day you are informed you are being dismissed from your job, and your final day for which your employer pays you.  During the notice period, the expectation is that employees will seek and secure comparable replacement employment; this is the known as the employee’s duty to mitigate.  For more information on the duty to mitigate, please see our information on Am I Obligated to find a Replacement Job?

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If you have an employment contract or agreement, your notice period may also be affected by any number of provisions in your employment contract/agreement, and specifically the language in the termination clause section.  We are happy to review your employment contract/agreement at any stage of your employment to enable you to have a better understanding of your legal relationship with your employer.

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In the absence of a written employment contract/agreement, and pursuant to the common law, the appropriate amount of time your employer should be providing you to find comparable replacement employment is calculated based on a number of your personal employment factors, known as Bardal factors.  Bardal factors, and those factors which may increase or decrease the notice period, typically include:

• your age;

• the length of time you served with that particular employer;

• job position and/or level of seniority;

• availability of comparable replacement employment - this includes how specialized your job is, or the combination of skills and education someone would need to do your job; and

• select other factors which may not apply to all persons (such as your geographic location or pregnancy).

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Your employer can ask for you to continue to report for work during your notice period, although the more common practice in today’s world is for the employer to pay the employee as if the employee had worked through the notice period, and for the employee to cease reporting to work the same day, or within a few days.

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It is important to remember that when you as the employee receive notification that you are being terminated, whether you work through the notice period or receive pay in lieu, if the notice period is the appropriate length, and you received the correct amount of compensation accordingly, your employer is unlikely to have any further obligation to you.

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Employment Lawyers Advising Workers

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We're on Your Side - Our skilled team of employment & labour lawyers have an outstanding reputation throughout the Lower Mainland and the Fraser Valley, and are dedicated to helping you resolve employment issues in the most efficient manner possible. If you have any questions or need assistance please reach out to our team today by submitting a Contact form.

Have you been fired, dismissed, or terminated?  Or informed by your employer that your job is about to change, or end if you do not agree to the change?  

‍

If yes, we think you might have a bunch of questions, and we are here to help. Below are a number of informational articles to help you figure out where to start; please check these out, and then let us know if you would like our help.

‍

We recommend reading the following articles as well in order to get a better picture of your options:

1. How Much Severance Am I Owed?
2. What Should I Do After Being Fired?

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Can I Be Fired Even if I Did Nothing Wrong?

The short answer is yes.  Generally speaking, anyone can be dismissed from their employment at any time, even if the person has done nothing wrong.

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When this happens, depending on how your employer handles the end of your employment is what determines whether any additional money is owed to you.  Please see the following articles from our resources to help you navigate what might happen next:

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• What is a Wrongful Dismissal?

• What is a Without Cause Dismissal?

• How much Severance am I Owed?

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However, even if you have been told the reason you are being dismissed from your job, or ‘cause’, the reason may not necessarily meet the legal test for cause; if your employer says you have been dismissed for cause, please read our article on For cause dismissals – what employees need to know.

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What is A Wrongful Dismissal?

Any time an employee is dismissed form their job, without cause, and does not receive the appropriate amount of notice or pay in lieu of notice, a wrongful dismissal has likely occurred.

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If you are unsure whether you have been dismissed from your job with or without cause, please see our sections below about What is a without cause termination? and For cause dismissals – what employees need to know, respectively.

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If you think you have been wrongfully dismissed, please see our article on How much severance am I owed.

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What is a Without Cause Dismissal?

A without cause dismissal includes most types of terminations that are not formally noted as being ‘for cause’.  If your employer says you have been dismissed for cause, please read our below section on For cause dismissals – what employees need to know.

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Importantly, a without cause dismissal and being dismissed from your job without being given a reason are not the same thing.  Your employer is not obligated to provide you with a reason for your termination, nor is being given a reason the same as being dismissed for cause.

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If you have been dismissed from your job without cause, you may be entitled to severance, depending on what amount of severance, notice period, or pay in lieu of notice, your employer has offered you.

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For Cause Dismissals – what Employees Need to Know

If your employer ended your employment ‘for cause’ or ‘with cause’, your ability to pursue a claim for severance is likely to be impacted.  However, just because your employer provided you a reason for your dismissal, does not mean your dismissal was either properly or formally for/with cause.

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In order to a cause dismissal to have been done proper, your employer will likely have needed to satisfy many steps along the way.  Some of the steps employers should take usually include:

• providing formal warnings, usually in writing;

• providing you with an opportunity to correct or change the actions your employer takes issue with; and,

• taking steps to help you improve in the areas your employer says you are coming up short.

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When cause dismissals are not handled correctly, the employee’s ability to pursue compensation is available.

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Notwithstanding the foregoing, there are a few instances where a for cause dismissal can occur on a single incident; while courts will evaluate these incidents on a case by case basis, you can think of single incidents which properly amount to cause as those in the hand-in-the-cookie-jar types of transgressions, and including acts like theft and sexual misconduct.

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If you have been told your dismissal was for or with cause, and would like to speak with us about it, please let us know.  In order for us to properly evaluate your situation, we will ask you for:

• your employment agreement/contract;

• the termination letter you received; and,

• any and all documentation relating to written warnings, employee improvement plans, and progress reports your employer may have provided to you.

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My Job Position is being Eliminated or Significantly Changed, Now What?

If your position is either being eliminated, or changed so much that it now seems like a different job, you might be considered as being constructively dismissed.

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In the most basic sense, a constructive dismissal can usually be said as having occurred anytime an integral or fundamental component of your job is changed in a non-minor way.  You can think of integral or fundamental components of your job as including your:

• duties;

• dollars; or

• hours.

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It is important to note that not all changes to your job scope will meet the legal test for a constructive dismissal.  Minor changes, or changes that would reasonably be understood as being within the type of job scope for your position are unlikely to meet the legal test.  However, and as a guide-post only, a change of 15% or more to any of the above three factors is likely to be seen as a strong indication of a constructive dismissal.

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Regardless of whether your position is being eliminated or markedly changed, whether you are being or have been constructively dismissed is something that should be assessed on a case by case basis.  If you would like our assistance in evaluating your situation, and knowing your option for the next steps, please feel free to be in touch with us.

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Employment Lawyers Advising Workers

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Our experienced employment and labour lawyers are here to support you and walk you through every step of the way. We know workplace issues are hard on everyone, and are ready to help you navigate these difficult times. If you have any questions or need assistance please reach out to our team by submitting a Contact form.

Much to the surprise of business leaders, the NDP introduced Bill 10 Labour Relations Code Amendment Act on Thursday April 6th, 2022.  Bill 10 eliminates secret ballot votes in most union certification applications *  by reintroducing a card check system and represents a fundamental change to the Code contrary to the recommendations contained in the Report  of the NDP’s expert Panel  (“ Expert Panel”) published in 2018.   It represents a return to the NDP’s 1992 policies of promoting union organizing much to the detriment of employees who now lose the right to decide in a secret ballot vote whether a union should represent them. The NDP has once again catered to the wishes of big unions with no apparent basis for making such drastic changes especially in light of the substantial changes to the Code in 2019.

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[*note: while a vote will still be held if union support is between 45% and 55% the reality is unions will now apply only when they have over 55% to avoid a secret ballot vote].

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Bill 10 accomplishes 3 major things:

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1. It eliminates the secret ballot vote that currently is required before a union can become the exclusive bargaining agent of employees in cases where the union can show card sign up or membership of at least 55% of the employees in an appropriate unit.   As noted above, a vote will still be held if union support is between 45% and 55%.
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2. It allows construction unions to replace an incumbent union by way of a raid application every year, not as per the current legislation that only allows such disruptive applications every three years.  The current provisions were recommended by the Expert Panel  and there appears to be no reason to make this change so soon after the Code amendments of 2019 except perhaps to allow the traditional building trades  unions the annual right to try to supplant what they believe to be employer friendly unions.
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3. It allows unions to get a sneak preview of their support and the employers’ business by allowing a precertification vote before the Board determines the appropriate bargaining unit thus allowing the union to define the bargaining unit based on its support.
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These amendments follow on the heels of significant amendments introduced in 2019 by the NDP on recommendations from the Expert Panel.  At that time the NDP was saddled by its agreement with the Green Party that allowed it to govern in a minority situation.  Andrew Weaver made it crystal clear that any amendments to the Code must preserve the democratic right of employees to decide the issue of union representation through a secret ballot vote. Most importantly the Expert Panel recommended continuing the secret ballot vote:  See Vaughn Palmer’s article in the Vancouver Sun on the history here.

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Business was blindsided by these changes and expressed their discontent in a news release at the failure of the NDP to engage in consultations as promised  before such a major shift would be implemented.

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It is interesting to note that a secret ballot vote will continue to be required if employees decide to decertify.  This shows in my view that the changes are intended to respond to the wishes of big unions not the wishes of employees.
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Déjà Vu All Over Again

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In my 40 + years of practicing labour law I have been amazed but not surprised by the constant pendulum swing in labour legislation since the Code was introduced in 1972.  The most significant swing was in 1992 when the NDP took power and introduced significant changes to the Code. That included major limitations on employer free speech, and it eliminated the secret ballot vote in precisely the way that Bill 10 does.  

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When the Liberals took power in 2001, they reversed many of these changes including broadening employer free speech and reintroducing the secret ballot vote.

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The combined effect of the NDP’s changes in 2019 and Bill 10 basically swings the pendulum back to 1992 with some additional amendments in favour of unions.  For example the LRB  can  certify now without a vote if it finds an unfair labour practice has been committed.  In one case where  only two out of almost 90 employees had expressed an interest in union representation and only one employee had signed a union card, the LRB ordered remedial automatic certification where the wishes of 88 employees were ignored: Salade Etcetera 2020 BCLRB 109 appeal of 2020 BCLRB 34 dismissed.

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Yet each and every time the governing party claims that the changes simply balance the scales.

News Release - Single-step certification

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The news release in my view is simply inaccurate and misleading.  Some of the errors are most egregious.

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For example, it never mentions that it is removing employees’ right to have a secret ballot vote.  Rather it speaks of going from a two-part certification process to a one-part system in order to protect employees.  It wrongly asserts that under the current system employees have two votes.  It justifies this major shift by stating incorrectly that one vote occurs when they sign up with a union and therefore the secret ballot vote is really just a second vote.  This is false.

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Unions do not hold secret ballot votes; rather they sign up employees (or use their membership evidence)  and use those membership cards to support their application.  

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Far from being a secret ballot vote the sign-up procedure discloses who is a member and who is not.  Many employees may well feel intimidated and forced to sign a card even though that does not reflect their true and informed wishes.  Yet the News Release states that this elimination of the secret ballot vote will avoid unfair labour practices such as “requiring employees to disclose their position on potential certification”—in fact it does precisely the opposite.

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And just like in 1992, the NDP unabashedly acknowledges that these changes are intended to make it easier for unions to organize without having to test their support in a secret ballot vote.

There are other misstatements in the New Release that undoubtedly will be used by employers in responding to a union organizing drive to set the record straight.

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What Should Business Owners Do?

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These amendments will undoubtedly pass given the elimination of the Green Party’s voice.  And it is the NDP’s right to govern as they see fit—after all they are following the Golden Rule “whoever has the gold makes the rules”.  So, business has to deal with this reality.

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If you are a non-union business or partially union/non union I recommend you familiarize yourself with the certification procedures and prepare in case a union comes knocking on your door. While the secret ballot vote may have been eliminated there are other objections that can be made to a union application for certification.

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In the absence of a secret ballot vote employers should keep their ears to the ground and respond if it learns that a union is organizing the workplace.  Educating employees before a union starts an organizing drive may be critical.  Caution still prevails as employers do not want to commit unfair labour practices, but you still have the opportunity to communicate with your employees.  Educating employees and maintaining a positive work environment may be in the best interests of the employees and your business.  This includes updating and reviewing employee policies and handbooks.  As I recommend “Get rid of the garbage can under the suggestion box”.

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We will be offering webinars outlining these changes and discussing strategies to respond to union certifications in the absence of a secret ballot vote.  If you are interested in attending, please contact Chris Drinovz at [email protected].  Or give me a call.

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Mike Weiler - Contact Info Here

Friday, April 8, 2022

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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.