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

Behaviour by the employer constituting condonation may include actions or omissions such as failing to dismiss the employee within a reasonable time (''Benson v. Lynes United Services Ltd'', [1979] 18 A.R. 328), tolerating an employee’s behaviour without reprimand (''Johnston v General Tire Canada Ltd'', [1985] OJ No 98), giving the employee a raise (''SjervenS v. Port Alberni Friendship Center'', [2000] BCJ No 608), or giving the employee a promotion (''Miller v Wackenhut of Canada Ltd'', [1989] OJ No 1993).

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 , where the court awarded moral damages, extensive costs, and $100,000 in punitive damages for improper cause allegations.  

“Temporary layoff” is defined in section 1 of the ''ESA''. A recent B.C. Supreme Court decision, ''Besse v Dr AS Machner Inc'', 2009 BCSC 1316, established that the temporary layoff provisions of the ''ESA'' alone do not give employers the right to temporarily lay off employees: a layoff constitutes termination unless it has been provided for in the contract of employment either expressly or as an implied term based on well-known industry-wide practice, or the  employee consented to the layoff. If the right to temporary layoff exists for one of these reasons, then the limits set out in section 1 apply: where an employee has been laid off for more than 13 consecutive weeks, and this has not been extended either by agreement or by the Director, the employee is considered to have been terminated permanently, and is entitled to severance pay. He or she also may be able to sue for wrongful dismissal before the 13-week period has expired. This would be the case where, although the employer has used the term “layoff”, it is nonetheless clear that the employee has been terminated.

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).  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.

The Supreme Court of Canada in ''Dowling v Halifax (City)'', [1998] 1 SCR 22 expressly rejected near cause as grounds for reducing the notice period. This decision has been consistently followed.

If the employer makes a fundamental, unilateral change in the employment contract, it may amount to constructive dismissal. Changes to a “fundamental term of  the contract” includes changes such as: significant reduction in salary, a significant change in benefits, a significant change in job content or status, or a job transfer to a different geographic location if such a transfer is not a normal occurrence or contemplated in the employment contract. Generally, a  reduction in pay of more than 10% may result in a constructive dismissal.  See ''Price v 481530 BC Ltd et al'', 2016 BCSC 1940.  

If a dysfunctional workplace creates an intolerable and toxic workplace, it may constitute constructive dismissal.  However, this is a high bar to prove, and plaintiffs who are unreasonable may have difficulty proving a constructive dismissal based on a poisoned work environment.  See ''Baraty v. Wellons Canada Corp'' 2019 BCSC 33.   

Suspensions from work may result in a constructive dismissal, particularly if the suspension is without pay. The case of ''Cabiakman v Industrial Alliance Life Insurance Co'', [2004] 3 SCR. 195 and ''Potter v. New Brunswick Legal Aid Services Commission'', 2015 SCC 10, [2015] 1 S.C.R. 500, reinforced an employer’s right to impose a suspension for administrative reasons, with pay, provided the employer is acting  to protect legitimate business interests, the employer is acting in good faith and fairly, and the suspension is for a relatively short period.  

Employees may want to consider providing employers with an opportunity to respond to changes in workplace conditions prior to leaving work under a constructive dismissal claim.  In ''Costello v. ITB Marine Group Ltd'', the court disallowed an employee’s constructive dismissal claim because the employee “did not give [the employer] a reasonable opportunity to respond to [her] complaint before taking the position that she had been constructively dismissed.”  

An employee is still required to mitigate his damages if he is constructively dismissed. Sometimes, the employee will be required to mitigate by continuing to work for his 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.  

If a business is sold, unless the seller specifically dismisses the employees there may be an implied assignment to the new owner if the employee continues to  provide services as before and the new owners accept those services (''ESA'', s 97). See also ''Helping Hands Agency Ltd v British Columbia (Director of Employment Standards)'', [1995] BCJ No 2524.

The Supreme Court of Canada affirmed the principle of good faith performance of contracts and its creation of the new common law duty of honesty in contractual performance in ''Bhasin v Hrynew'', 2014 SCC 71.   

If one suspects the employer acted in bad faith in the manner of dismissal, one should do further research to determine whether the employee has a strong case. For a table of cases in which aggravated or punitive damages were sought, and a list of the damages awarded, see “Aggravated and Punitive Damages and Related Legal Issues”, Employment Law Conference 2013, Paper 8.1, CLE BC.  

=== 2. Record of Employment and Reference Letters ===

Since the decision of ''Wallace v United Grain Growers'', the view has been that an employer should provide a reference unless they have good reason not to. Failing to provide a reference could be construed by the courts as evidence of bad faith. In practical terms however, there is no way for a former employee to force their employer to provide a suitable reference letter without making some other sort of claim covered by the ''ESA'' or the common law.  

An employee must give their employer reasonable notice if they are resigning. “Reasonable notice”, in the case of resignations, is much shorter than the notice that employers must give to employees who are being dismissed. Although giving two weeks’ notice is the usual practice, the  courts may require more or less than that amount, depending on the employee’s responsibilities.  

If an employee breaches this duty, they may be held liable for the profits that their continued employment would have generated for the employer; this is generally only of concern if the employee generates significant profits for the employer. For further details, see ''RBC Dominion Securities Inc v Merrill Lynch Canada Inc'', 2008 SCC 54.

If an employment contract contains a restrictive covenant (such as a non-competition clause or a non-solicitation clause), see [[{{PAGENAME}}#1. Restrictive Covenants | section IV.F.1: Restrictive Covenants]], above. Employees without a valid non-competition clause (and who are not in a fiduciary position – see [[{{PAGENAME}}#5. Fiduciary duties | section V.E.3: Fiduciary duties]], below) may compete against  an employer as soon as they are no longer employed by the employer (''Valley First Financial Services Ltd v Trach'', 2004 BCCA 312). However, employees should be careful not to compete unfairly, or compete using confidential information obtained from their former employer.

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). 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). 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.

Family status protection includes childcare and family obligations. See ''Johnstone v Canada Border Services'' (2010 CHRT 20).  

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.   

=== 2. Harassment in the workplace ===

=== 3. Retaliation for Filing a Complaint ===

=== 4. Employment Standards Act Claim Retaliation ===

=== 5. Human Rights Code Claim Retaliation ===

=== 6. Employee's Privacy ===