Difference between revisions of "Employment Law Issues (9:V)"

{{LSLAP Manual TOC|expanded = employment}}

Section 9 of the ESA states that children under the age of 15 cannot be employed unless the employer has obtained written permission from a parent or guardian.  The employer must have this written consent on file indicating that the parent or guardian knows where the child is working, the hours of the work, and the type of work.  No person shall employ a child under the age of 12 years unless the employer has obtained permission from the Director of Employment Standards.  In cases where permission from the Director is required, the Director may also set conditions of employment for the child.  See ''ES Regulation'', Part 7.1.  For complete details of conditions, see www.labour.gov.bc.ca/esb or call 1-800-663-7867.

If an employer is accused of illegally using child employment they will carry the onus in proving that it was either justified, or that the child was of legal age.

=== 9. Statutory Holidays and Statutory Holiday Pay ===

For a provincially regulated employee to be entitled to a statutory holiday under the Employment Standards Act, the employee must have been employed by the employer for at least 30 calendar days before the statutory holiday and must either have worked under an averaging agreement within this period or have worked or earned wages for 15 of these 30 calendar days.  

==== d) Canadian Emergency Response Benefit (“CERB”) and Damages ====

== C. The ESA and Covid-19 ==

The Employment Standards Branch interpretation guidelines have suggested that this clause may apply in some circumstances, as follows:  

:If a business closure or staffing reduction is directly related to Covid-19 and there is no way for employees to perform work in a different way (for example, working from home) the exception may apply to exclude employees from receiving compensation for length of service and/or group termination pay.

When an employee is fired without being provided reasonable notice of dismissal or being paid money in lieu of reasonable notice (i.e., severance), the employee may have a breach of contract claim. The failure to provide reasonable notice (or pay in lieu) is also referred to as a wrongful dismissal. See [[Section V.C: Termination of Employment (V.C) | Section V.C: Termination of Employment]].

=== 2. Constructive Dismissal Claims ===

If an employer has unilaterally changed a fundamental term of the employee’s employment in a significant way, the employee may have been “constructively dismissed” and may be entitled to damages. See [[#C. Termination of Employment | Section V.C: Termination of Employment]]. Examples of unilateral significant changes to fundamental terms of employment include significant changes to the type of work done by an employee, significant decreases to the employee’s rate of pay, or significant changes to other working conditions.

=== 3. Bonus Clause Claims ===

According to some case law, previous misconduct that has been condoned may be revived by new instances of misconduct, and the employer may then use the cumulative effect of the past and the new misconduct to justify dismissal.  However, this is an area with conflicting case law.  If the employer has warned the employee about the past misconduct, there would not be an issue regarding the revival of the past misconduct, as it would not have been condoned in the first place; the cumulative effect of the misconduct could then be used to justify dismissal.

The employee carries the burden of proving the condonation; see ''Perry v Papillon Restaurant (1981)'', 8 ACWS (2d) 216.

Some employers assert just cause (or file counterclaims) as a litigation tactic to deter an employee from advancing a valid wrongful dismissal claim.  In these scenarios employees may use that employer tactic as both a defence, and as grounds for additional damages claims against the employer.  See R''uston v. Keddco Mfg. (2011) Ltd.'', 2018 ONSC 2919, https://canlii.ca/t/hs2rn, where the court awarded moral damages, extensive costs, and $100,000 in punitive damages for improper cause allegations.

In British Columbia, there is a developing judicial trend towards extending the right to be treated fairly to probationary employees.  The test in British Columbia for terminating probationary employees is that of suitability, not just cause, as set forth in ''Jadot v Concert Industries'', [1997] BCJ No 2403 (BCCA), https://canlii.ca/t/1dzdh.  In determining suitability, the case of ''Geller v Sable Resources Ltd'', 2012 BCSC 1861, explained that the probationary employee must be given a chance to meet the standards that the employer set out when the employee was hired; the employer cannot begin imposing new standards afterwards.

=== 9. Near Cause ===

Not all resignations are resignations, and not all dismissals are dismissals. The legal test is what a reasonable person would have understood by the relevant statements and actions, taking into consideration the context of the particular industry, and all surrounding circumstances.  

For example, harassment at work may cause the employee to be unable to continue working and this might cause them to resign; in cases such as these, additional research should be done to determine whether the situation should be considered a resignation or a dismissal.

Prior to the Honda v Keays decision, damages awarded where the employer had acted in bad faith were assessed by simply extending the notice period to which the employee would otherwise be entitled.  This practice was based on the Supreme Court of Canada’s decision in ''Wallace v United Grain Growers Ltd'', [1997] 3 SCR 701, and the awards were informally known as “Wallace Damages”.  Following the Honda v Keays decision, the practice of assessing damages by extending the notice period is no longer to be used. Now, a claimant must prove what actual losses or mental harm the employee incurred, and the employee is then compensated for those actual losses or mental distress.  See ''Strudwick v Applied Consumer & Clinical Evaluations Inc''., 2016 ONCA 520.

==== b) Bad Faith Performance of Contracts ====

“Bad faith” has been found in cases the  following cases:

==== c) Good Faith Performance of Contracts ====

If an employee was treated particularly harshly by their employer, even if they did not suffer documented medical harm, consider claiming punitive damages.  See the paper entitled “Aggravated and Punitive Damages and Related Legal Issues” for a table of cases in which aggravated or punitive damages were sought in order to compare your situation to others and determine an appropriate amount of damages (see section V.C.13 Aggravated and Punitive Damages, above).

*Defamation

In many cases, the duty to mitigate may require a constructively dismissed employee to stay on the job while seeking other employment (''Cayen v Woodwards Stores Ltd'' (1993), 75 BCLR (2d) 110 (CA)).  

Employees are not required to return to a position where the fundamental terms of their job have changed or where they have been maligned such that the relationship cannot be restored. Accusations of dishonesty in negotiations or radically limited and uncertain terms in offers may result in reemployment being found to be unreasonable. The employee is not expected to act in the employer’s best interest to the detriment of their own interests. For example, if an employee was ill at the time of dismissal they are not required to make strenuous efforts to find new employment. Similarly, an employee in the late stages of pregnancy may  not be required to seek new employment until several months after the birth of their child. The employee’s perception of what is reasonable is  usually given more weight than that of the employer.   

In a legal dispute, the onus of proof as to whether the claimant former employee has properly taken efforts to mitigate their damages generally falls on the defendant former employer.

An employee is still required to mitigate their damages if they are constructively dismissed. Sometimes, the employee will be required to mitigate by continuing to work for their current employer.  See ''Evans v Teamsters Local Union No. 31'' (2008 SCC 20) for a discussion of the relationship between constructive dismissal and the employee`s duty to mitigate.

==== d) Mitigated Damages ====

If an employee receives damages for wrongful dismissal, this money is treated as earnings, and the employee will be required to pay back the appropriate amount of EI benefits received while waiting for the court case to be heard (EI benefits are not deducted from the amount of the damage award). Note that the employee may be able to receive the EI benefits back again if they are still unemployed and searching for work after the period covered by the severance award; call Service Canada at 1-800-206-7218 for further details if this situation may apply to the employee.

=== 17. Frustration of Contract ===

Whether a particular provision is a restraint of trade is determined not only by the form of the clause, but by the effect of the clause in  practice (''Levinsky v The Toronto-Dominion Bank'', 2013 ONSC 5657). Restrictive covenants may also influence the assessment of reasonable  notice (see “Two Topics Relating to Restraint of Trade in Employment: Practical Alternatives to Restrictive Covenants and the Impact of  Restrictive Covenants on Reasonable Notice”, Richard Truman and Valerie S. Dixon, Employment Law Conference 2014, Paper 3.2, CLE BC). As a general common law rule, restrictive covenants are presumed to be invalid. It is up to the party trying to enforce the covenant (usually the employer) to prove that it should be enforced, and it can be quite difficult to write a covenant narrow enough to be upheld in court. In  deciding whether or not to enforce a restrictive covenant, the court must balance the interests of society in maintaining free and open competition with the interests of individuals to contract freely. The “public policy test” that emerges from the common law consists of the following considerations (per ''Shafron v KRG Insurance Brokers (Western) Inc'', 2009 SCC 6):  

The courts are unwilling to re-write restrictive covenants if they contain uncertain and ambiguous terms; these covenants are deemed prima  facie unreasonable and unenforceable (''Shafron v KRG Insurance Brokers (Western) Inc''). It can often be a simple matter to find an ambiguity:  the length of time or geographic area might not be specified, or there may be a prohibition against soliciting clients that the employee did not work with, or the employer may have used a non-compete clause when a non-solicitation clause would have adequately protected their legitimate business interests.  See ''Powell River Industrial Sheet Metal Contracting Inc. (P.R.I.S.M.) v Kramchynski'', 2016 BCSC 883.

If an employer tells an employee that they will only receive a reference letter if they resign, in order for the employer to avoid liability for severance payments, the employee may be able to make a claim for both wrongful dismissal and punitive damages (''Vernon v British Columbia (Liquor Distribution Branch)''), 2012 BCSC 133).

Generally, it is rare for an employer to sue an employee. This might occur if an employee breaches a term of a contract (including an implied term), or if an employee breaches a fiduciary duty. Sometimes, after an employee brings an action against an employer, the employer will make a counterclaim against the employee as a strategic move to encourage the employee to settle for a lower amount; the strength of the employer’s case should be carefully considered if this occurs.  

If an employment contract contains a restrictive covenant (such as a non-competition clause or a non-solicitation clause), see Section V.D.1: Restrictive Covenants, above.

It is an implied term of an unwritten employment contract that the employee will not misuse the employer’s confidential information. A common example of confidential information is the employer’s list of customers. Employees who take a customer list by printing it out or putting it on a USB key and taking it with them, or by emailing it to themselves, would be in breach of this duty. One notable exception is that an employee may use any part of the customer list that they have simply memorized (per ''Valley First Financial Services Ltd v Trach'', 2004 BCCA 312), but this still does not relieve the employee of the restriction on misuse of other employer confidential information to compete unfairly against the former employer. Additionally, employees such as financial advisors, who have developed ongoing relationships with clients, may be entitled to take a list of  their own clients to inform them that they are departing, and where they will be working in the future (''RBC Dominion Securities Inc v Merrill Lynch Canada Inc et al'', 2007 BCCA 22 at para 81, reversed in part at 2008 SCC 54; ''Edwards Jones v Voldeng'', 2012 BCCA 295, https://canlii.ca/t/frx42). Note however that this may be prevented if the employee is in a fiduciary position, and there may be limits on the permitted contact or other complications if the employee signed a non-solicitation agreement.

Employees who are in a fiduciary relationship to their employer have duties of loyalty, good faith, and avoidance of a conflict of duty and  self-interest. They cannot, for example, take advantage of business opportunities that they should have been pursuing for their employer, even if they resign from their position.

== H. Other Employment Law Issues ==

*The person complains or is named in a complaint, gives evidence, or otherwise assists in a complaint or other proceeding under the ''HRC''  

Family status protection includes childcare and family obligations. See Johnstone v Canada Border Services, 2010 CHRT 20, https://canlii.ca/t/2cs2j. In Harvey v Gibraltar Mines Ltd. (No. 2), 2020 BCHRT 193, https://canlii.ca/t/jbnsk, the BCHRT determined that the requirement to show a change in working conditions may not be necessary to demonstrate discrimination based on family status.

Included in the protected ground of sex is the protection of employees from sexual harassment in the workplace. The analysis of sexual harassment by the BC Human Rights Tribunal may be shifting away from requiring the complainant to prove that the sexual harassment was unwelcome in an objective sense. As elucidated in Ms K v Deep Creek Store and another, 2021 BCHRT 158, https://canlii.ca/t/jkspm, to find sexual harassment contrary to the Code, the Tribunal “must determine that the conduct is unwelcome or unwanted. The burden on the complainant is to prove that they were adversely impacted by the sexualized conduct. If they do so, it is implicit in that finding that the conduct is unwelcome. It is open to a respondent to challenge an alleged adverse impact, so long as they do not rely on gender‐based stereotypes and myths.”

For more information about each of the prohibited grounds, see [[BC Human Rights Code (6:III)#B. Prohibited Grounds of Discrimination | Chapter 6: Human Rights, Section III.B: Prohibited Grounds of Discrimination]]. See also “Recent Human Rights Cases of Interest for Employment Lawyers”, Michael A. Watt, Employment Law Conference 2014, Paper 4.1, CLE BC, https://canlii.ca/t/2cs2j.   

If the employee appears to have been discriminated against based on a prohibited ground, see [[{{PAGENAME}}#1. Discrimination in Employment | Section V.F.1: Discrimination in Employment]] of this chapter for basic information on remedies for discrimination, or see [[BC Human Rights Code (6:III)#C. The Complaint Process | Chapter 6: Human Rights, Section III.C: The Complaint Process]] for more detailed information.   

Federally regulated employees are covered by the ''Canadian Human Rights Act''. Similar protections are provided to that of the ''Human Rights Code'', though they are not identical. The ''Canadian Human Rights Act'' has recently been updated to include gender identity or expression as a prohibited ground of discrimination.

Federal equal pay provisions in the ''Canadian Human Rights Act'' are somewhat broader than those found in B.C.’s ''Human Rights Code''. It is discriminatory under the ''Canadian Human Rights Act'' to pay male and female employees different wages where the work that they are doing is of comparatively equal value. This means that even if the work itself is not demonstrably similar, the pay equity provisions may still be enforced if the value of the work is similar. Factors that are considered in determining whether work is of equal value include: skill, efforts and responsibility required, and conditions under which the work is performed (''Canadian Human Rights Act'', s 11(2)).

In Lord v. Fraser Health Authority and another, 2020 BCHRT 64, the BCHRT noted that if something reasonably alerts the employer that the employee might have a disability that required accommodation, this duty to inquire becomes the first step in the duty to accommodate process.  If an employer thinks there is a connection between an employee’s poor work performance and a disability, the employer should inquire with the employee as to whether the employee has an illness or disability that is affecting performance, prior to taking actions that adversely affects the employee.  Failure to do so could be a breach of the duty to accommodate.

Bullying and harassment in the workplace are developing areas of the law.  There are several possible avenues for addressing a complaint in this area if the issue cannot be resolved within the workplace.  

==== a) Employment Standards Act Claim Retaliation ====

==== b) Human Rights Code Claim Retaliation ====

An employee may face retaliation for bringing an internal complaint, possible through a formal complaint process outlined in an employment policy.  If the employer retaliates against the employee in a significant manner, this could constitute a constructive dismissal.  In addition, if the employer dismisses the employee following a legitimate complaint, this may form grounds for an aggravated damages claim as a result of a bad faith dismissal.

==== a) Legislation ====

The Ontario Superior Court of Justice recognized the tort of public disclosure of private facts in ''Doe v. D'', 2016 ONSC 541, so there may be a new common law remedy in the appropriate circumstances.   

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