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

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Employment Law Issues (9:V) (view source)

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A single incident is usually insufficient to justify dismissal (''Buchanan v Continental Bank of Canada'' (1984), 58 NBR (2d) 333 (QB)), unless that act is extremely prejudicial to the employer such as dishonesty or immoral character that causes a failure of trust (''Stilwell v Audio Pictures Ltd'', [1955] OWN 793(CA)).   
A single incident is usually insufficient to justify dismissal (''Buchanan v Continental Bank of Canada'' (1984), 58 NBR (2d) 333 (QB)), unless that act is extremely prejudicial to the employer such as dishonesty or immoral character that causes a failure of trust (''Stilwell v Audio Pictures Ltd'', [1955] OWN 793(CA)).   


The cumulative effect of minor instances may justify dismissal if they make the employee unable to perform his or her duties or result in a  serious deterioration of the employment relationship (''Ross v Willards Chocolates Ltd'', [1927] 2 DLR 461 (Man KB)).
The cumulative effect of minor instances may justify dismissal if they make the employee unable to perform their duties or result in a  serious deterioration of the employment relationship (''Ross v Willards Chocolates Ltd'', [1927] 2 DLR 461 (Man KB)).


Where an employer accepts a certain standard of performance over a period of time, the employer cannot without warning treat such conduct as  cause for dismissal (''Dewitt v A&B Sound Ltd'' (1978), 85 DLR (3d) 604 (BCSC)).  
Where an employer accepts a certain standard of performance over a period of time, the employer cannot without warning treat such conduct as  cause for dismissal (''Dewitt v A&B Sound Ltd'' (1978), 85 DLR (3d) 604 (BCSC)).  
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Although there is no comprehensive list of what constitutes just cause, the list below discusses some of the more common grounds for a dismissal.
Although there is no comprehensive list of what constitutes just cause, the list below discusses some of the more common grounds for a dismissal.


==== Insubordination/Disobedience ====
==== a) Insubordination/Disobedience ====


Insubordination or insolence that is incompatible with the continuation of the employment relationship is just cause for dismissal (''Latta v Acme Cheese Co'' (1923), 25 OWN l95 (Ont Div CT)). A single incident that is very severe and interferes with and prejudices the safe and proper conduct of the business will be just cause for dismissal (''Stilwell v Audio Pictures Ltd'', [1955] OWN 793(CA)). Poor judgment, insensitivity, or resentment, is generally not sufficient (''Leblanc v United Maritime Fisherman Co-op'' (1984), 60 NBR (2d) 341 (QB)).   
Insubordination or insolence that is incompatible with the continuation of the employment relationship is just cause for dismissal (''Latta v Acme Cheese Co'' (1923), 25 OWN l95 (Ont Div CT)). A single incident that is very severe and interferes with and prejudices the safe and proper conduct of the business will be just cause for dismissal (''Stilwell v Audio Pictures Ltd'', [1955] OWN 793(CA)). Poor judgment, insensitivity, or resentment, is generally not sufficient (''Leblanc v United Maritime Fisherman Co-op'' (1984), 60 NBR (2d) 341 (QB)).   
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'''NOTE:''' A refusal to co-operate, a neglect of duties, or a refusal to perform the job may be just cause for dismissal (''Lucas v Premier Motors Ltd'', [l928] 4 DLR 526 (Alta CA)). However, if an employer proposes a unilateral change in position, job function, pay, hours, etc., it is not just cause if the employee refuses the change. Rather, it may be considered a constructive dismissal. Failure to accept a reasonable  transfer not involving demotion or undue burden or hardship may be cause for dismissal, if such a transfer is determined to be an express or implied term of the contract.
'''NOTE:''' A refusal to co-operate, a neglect of duties, or a refusal to perform the job may be just cause for dismissal (''Lucas v Premier Motors Ltd'', [l928] 4 DLR 526 (Alta CA)). However, if an employer proposes a unilateral change in position, job function, pay, hours, etc., it is not just cause if the employee refuses the change. Rather, it may be considered a constructive dismissal. Failure to accept a reasonable  transfer not involving demotion or undue burden or hardship may be cause for dismissal, if such a transfer is determined to be an express or implied term of the contract.


==== Poor Employee Performance ====
==== b) Poor Employee Performance ====


Where there is actual incompetence, not just dissatisfaction with an employee’s work, the employee may be dismissed with cause if such incompetence is the fault of the employee (''Waite v La Ronge Childcare Co-operative'' (l985), 40 Sask R 260 (QB)). If an employee presents an exaggerated assessment of his or her own skills, a company is justified in dismissing that employee after finding out his or her true abilities (''Manners v Fraser Surrey Docks Ltd'' (1981), 9 ACWS (2d) 155). Incompetence is assessed using an objective standard of performance, and it is for the employer to prove that the employee fell below the standard. Usually, one isolated example of failure to meet such a test does not  warrant discharge (''Clark v Capp (1905)'', 9 OLR 192). The employer must prove that:
Where there is actual incompetence, not just dissatisfaction with an employee’s work, the employee may be dismissed with cause if such incompetence is the fault of the employee (''Waite v La Ronge Childcare Co-operative'' (l985), 40 Sask R 260 (QB)). If an employee presents an exaggerated assessment of their own skills, a company is justified in dismissing that employee after finding out their true abilities (''Manners v Fraser Surrey Docks Ltd'' (1981), 9 ACWS (2d) 155). Incompetence is assessed using an objective standard of performance, and it is for the employer to prove that the employee fell below the standard. Usually, one isolated example of failure to meet such a test does not  warrant discharge (''Clark v Capp (1905)'', 9 OLR 192). The employer must prove that:


*a) reasonable standards of behaviour and performance were set and clearly communicated to the employee;  
*a) reasonable standards of behaviour and performance were set and clearly communicated to the employee;  
*b) the employee was notified when he or she did not meet those standards;  
*b) the employee was notified when they did not meet those standards;  
*c) the employee received training and was allowed adequate time to meet those standards; and  
*c) the employee received training and was allowed adequate time to meet those standards; and  
*d) the possible repercussions of failing to meet those standards were clearly communicated.  
*d) the possible repercussions of failing to meet those standards were clearly communicated.  
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Incompetence as grounds for dismissal needs to be considered in light of the ''Human Rights Code'' and the ''bona fide'' occupational requirement (“BFOR”) test (see ''British Columbia (Public Service Employee Relations Commission) v British Columbia Government and Service Employees’ Union'' (BCGSEU), [1999] 3 SCR 3). In a case of poor employee performance, the ESB will not find just cause for dismissal unless the employer can demonstrate a “neglect of duties”.  
Incompetence as grounds for dismissal needs to be considered in light of the ''Human Rights Code'' and the ''bona fide'' occupational requirement (“BFOR”) test (see ''British Columbia (Public Service Employee Relations Commission) v British Columbia Government and Service Employees’ Union'' (BCGSEU), [1999] 3 SCR 3). In a case of poor employee performance, the ESB will not find just cause for dismissal unless the employer can demonstrate a “neglect of duties”.  


==== Dishonesty ====
==== c) Dishonesty ====


Dishonesty must be proven on a balance of probabilities and the burden rests with the employer (''Hanes v Wawanesa Insurance Company'', [1963]  SCR 154). The employer must show that the employee intentionally and deceitfully engaged in the misconduct. Failure by the employer to prove dishonesty may lead to punitive damages.
Dishonesty must be proven on a balance of probabilities and the burden rests with the employer (''Hanes v Wawanesa Insurance Company'', [1963]  SCR 154). The employer must show that the employee intentionally and deceitfully engaged in the misconduct. Failure by the employer to prove dishonesty may lead to punitive damages.


Dishonesty may be a cause for dismissal, especially if it indicates an untrustworthy character or is seriously prejudicial to the employer’s interests or reputation (''Jewitt v Prism Resources'' (1981), 127 DLR (3d) 190 (BCCA)). In ''McKinley v BC Tel'', [2001] 2 SCR 161, https://canlii.ca/t/521q, the Supreme Court of Canada used a contextual approach to make this assessment. The test is whether the dishonesty violates an essential condition of the employment contract, breaches the faith inherent to the work relationship or is fundamentally or directly inconsistent with the employee’s obligations to his or her employer. An effective balance must be struck between the severity of the misconduct and the sanction imposed.
Dishonesty may be a cause for dismissal, especially if it indicates an untrustworthy character or is seriously prejudicial to the employer’s interests or reputation (''Jewitt v Prism Resources'' (1981), 127 DLR (3d) 190 (BCCA)). In ''McKinley v BC Tel'', [2001] 2 SCR 161, https://canlii.ca/t/521q, the Supreme Court of Canada used a contextual approach to make this assessment. The test is whether the dishonesty violates an essential condition of the employment contract, breaches the faith inherent to the work relationship or is fundamentally or directly inconsistent with the employee’s obligations to their employer. An effective balance must be struck between the severity of the misconduct and the sanction imposed.


==== Intoxication ====
==== d) Intoxication ====


Depending on the extent of intoxication and degree of prejudice to the employer, intoxication may be a cause for dismissal; see ''Armstrong v Tyndall Quarry Co'' (1910), 16 WLR 111 (Man KB).  But, intoxication in itself is not grounds for dismissal.  The courts should undertake a contextual approach, per McKinley, look at all relevant factors (i.e., work history, discipline history, and whether the position is safety sensitive.  Courts may be sympathetic to alcohol abusers especially if they are long-term employees; see ''Robinson v Canadian Acceptance Corp Ltd'' (l974), 47 DLR (3d) 417 (NSCA).
Depending on the extent of intoxication and degree of prejudice to the employer, intoxication may be a cause for dismissal; see ''Armstrong v Tyndall Quarry Co'' (1910), 16 WLR 111 (Man KB).  But, intoxication in itself is not grounds for dismissal.  The courts should undertake a contextual approach, per McKinley, look at all relevant factors (i.e., work history, discipline history, and whether the position is safety sensitive.  Courts may be sympathetic to alcohol abusers especially if they are long-term employees; see ''Robinson v Canadian Acceptance Corp Ltd'' (l974), 47 DLR (3d) 417 (NSCA).
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Consider whether the intoxication is part of a larger substance abuse issue. If so, the employee may have a Human Rights claim (see [[Introduction to Human Rights (6:I) | Chapter 6: Human Rights]] and the duty to accommodate).
Consider whether the intoxication is part of a larger substance abuse issue. If so, the employee may have a Human Rights claim (see [[Introduction to Human Rights (6:I) | Chapter 6: Human Rights]] and the duty to accommodate).


==== Absences and Lateness ====
==== e) Absences and Lateness ====


When an employee is frequently absent from work, the absence occurs at a critical time, or the employee lies about the absence, it may be a cause for dismissal. Chronic lateness may also be cause for dismissal.  
When an employee is frequently absent from work, the absence occurs at a critical time, or the employee lies about the absence, it may be a cause for dismissal. Chronic lateness may also be cause for dismissal, particularly if it is coupled with clear written warnings from the employer.  


Consider whether the lateness or absenteeism are caused by a physical or mental disability. If so, the employee may have a claim at the B.C. Human Rights Tribunal (see [[Governing Legislation and Resources for Human Rights (6:I) | Chapter 6: Human Rights]]).     
Consider whether the lateness or absenteeism are caused by a physical or mental disability. If so, the employee may have a Human Rights claim (see [[Governing Legislation and Resources for Human Rights (6:I) | Chapter 6: Human Rights]]).     


==== Illness ====
==== f) Illness ====


Temporary illness does not constitute just cause (''McDougal v Van Allen Co Ltd.'' (1909), 19 OLR 351 (HC)). For a lengthy illness, one must consider the nature of the services to be performed, the intended length of service of the employee, and other factors (''Yeager v RJ Hastings Agencies Ltd'' (l985), 5 CCEL 266 (BCSC), https://canlii.ca/t/22wgp). In some cases, a period of one year may not be too long for an employer to await the return of a valuable employee (''Wilmot v Ulnooweg Development Group Inc'', 2007 NSCA 49, https://canlii.ca/t/1rknd). If the employee is permanently incapable of performing work duties, he or she may properly be dismissed (''Ontario Nurse’s Federation v Mount Sinai Hospital'', [2005] OJ No 1739, https://canlii.ca/t/1k90s). Illness is usually considered frustration of contract, and is not grounds for dismissal for just cause; however, if the contract is frustrated, the employee is not entitled to severance pay.  
Temporary illness does not constitute just cause (''McDougal v Van Allen Co Ltd.'' (1909), 19 OLR 351 (HC)). For a lengthy illness, one must consider the nature of the services to be performed, the intended length of service of the employee, and other factors (''Yeager v RJ Hastings Agencies Ltd'' (l985), 5 CCEL 266 (BCSC), https://canlii.ca/t/22wgp). In some cases, a period of one year may not be too long for an employer to await the return of a valuable employee (''Wilmot v Ulnooweg Development Group Inc'', 2007 NSCA 49, https://canlii.ca/t/1rknd). If the employee is permanently incapable of performing work duties, they may properly be dismissed (''Ontario Nurse’s Federation v Mount Sinai Hospital'', [2005] OJ No 1739, https://canlii.ca/t/1k90s). Illness is usually considered frustration of contract, and is not grounds for dismissal for just cause; however, if the contract is frustrated, the employee is not entitled to severance pay.  


Consider whether the illness is actually a physical or mental  disability. If so, the employee may have a claim at the B.C. Human Rights Tribunal (see [[Introduction to Human Rights (6:I) | Chapter 6: Human Rights]]).
Consider whether the illness is actually a physical or mental  disability. If so, the employee may have a Human Rights claim (see [[Introduction to Human Rights (6:I) | Chapter 6: Human Rights]]).


==== Conflict of Interest ====
==== g) Conflict of Interest ====


An employee has a duty to be faithful and honest. Information obtained in the course of employment may not be used for their own purposes or purposes that are contrary to the interests of the employer (''Bee Chemical Co v Plastic Paint and Finish Specialists Ltd et al'' (l979), 47 CPR (2d) 133 (Ont CA)). An employee may be liable for damages for breach of contract where he or she is running a business contemporaneous with being an employee (''Edwards v Lawson Paper'' (1984), 5 CCEL 99). An employee’s conduct that is seriously incompatible with their duties and creates a conflict of interest can be grounds for summary dismissal (see ''Durand v Quaker Oats Co of Canada'' (1990), 45 BCLR (2d) 354 (CA), https://canlii.ca/t/1d7fp. Following the end of employment, an employee is not permitted to compete  unfairly against the employer, for example by using confidential information.
An employee has a duty to be faithful and honest. Information obtained in the course of employment may not be used for their own purposes or purposes that are contrary to the interests of the employer (''Bee Chemical Co v Plastic Paint and Finish Specialists Ltd et al'' (l979), 47 CPR (2d) 133 (Ont CA)). An employee may be liable for damages for breach of contract where they are running a business contemporaneous with being an employee (''Edwards v Lawson Paper'' (1984), 5 CCEL 99). An employee’s conduct that is seriously incompatible with their duties and creates a conflict of interest can be grounds for summary dismissal (see ''Durand v Quaker Oats Co of Canada'' (1990), 45 BCLR (2d) 354 (CA), https://canlii.ca/t/1d7fp. Following the end of employment, an employee is not permitted to compete  unfairly against the employer, for example by using confidential information.


==== Off-Duty Conduct ====
==== h) Off-Duty Conduct ====


Private conduct will be considered just cause for dismissal if it is incompatible with the proper discharge of the employee’s duties, or is prejudicial to the employer. This depends on the conduct and the nature of the job. Alleged criminal conduct or conduct that interferes with the internal harmony of the workplace, if it is prejudicial to the employer, may also be just cause.  
Private conduct will be considered just cause for dismissal if it is incompatible with the proper discharge of the employee’s duties, or is prejudicial to the employer. This depends on the conduct and the nature of the job. Alleged criminal conduct or conduct that interferes with the internal harmony of the workplace, if it is prejudicial to the employer, may also be just cause.  


==== Personality Conflict ====
==== i) Personality Conflict ====


A personality conflict, i.e. inability of an employee to function smoothly in the work environment on a personal level, is not grounds for dismissal unless it is inconsistent with the proper discharge of the employee’s duties or is prejudicial to the employer’s interests (''Abbott v GM Gest Ltd'', [l944] OWN 729). If the inability to get along with others results in business interference, the employee may be dismissed (''Fonceca v McDonnell Douglas Ltd'' (l983), l CCEL 51 (Ont HC)).  
A personality conflict, i.e. inability of an employee to function smoothly in the work environment on a personal level, is not grounds for dismissal unless it is inconsistent with the proper discharge of the employee’s duties or is prejudicial to the employer’s interests (''Abbott v GM Gest Ltd'', [l944] OWN 729). If the inability to get along with others results in business interference, the employee may be dismissed (''Fonceca v McDonnell Douglas Ltd'' (l983), l CCEL 51 (Ont HC)).  


==== Breach of Confidence/Privacy Obligations ====
==== j) Breach of Confidence/Privacy Obligations ====
An employee’s unauthorized disclose of employer confidential information may amount to a cause dismissal. An employee’s secret recording of meetings with management might be found to be a breach of confidentiality and privacy obligations amounting to cause.  See ''Hart v. Parrish & Heimbecker'', Limited 2017 MBQB 68, https://canlii.ca/t/h3n7h.
An employee’s unauthorized disclose of employer confidential information may amount to a cause dismissal. An employee’s secret recording of meetings with management might be found to be a breach of confidentiality and privacy obligations amounting to cause.  See ''Hart v. Parrish & Heimbecker'', Limited 2017 MBQB 68, https://canlii.ca/t/h3n7h.


==== Just Cause - Deleting Company Information ====
==== k) Just Cause - Deleting Company Information ====


Deleting or altering company information in the course of departure from employment may in some circumstances be grounds for a just cause dismissal.  However, as with all just cause cases a McKinley contextual analysis should be applied.  In the case of ''Kerr v. Arpac Storage Systems Corporation'', 2018 BCSC 704, the court found the employee’s deletion of company information around the end of employment was not enough to constitute a just cause dismissal, partially due to the employee’s mental state and because the employee apologized.
Deleting or altering company information in the course of departure from employment may in some circumstances be grounds for a just cause dismissal.  However, as with all just cause cases a McKinley contextual analysis should be applied.  In the case of ''Kerr v. Arpac Storage Systems Corporation'', 2018 BCSC 704, the court found the employee’s deletion of company information around the end of employment was not enough to constitute a just cause dismissal, partially due to the employee’s mental state and because the employee apologized.
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If an employer alleges just cause for dismissal, the employee might have one of the following defenses to the just cause allegations.   
If an employer alleges just cause for dismissal, the employee might have one of the following defenses to the just cause allegations.   


==== No Warning ====
==== a) No Warning ====


It can be argued that an employer must warn an employee before firing that employee for a series of trivial incidents that are not serious enough alone to justify dismissal (''Fonceca v McDonnell Douglas'' (l983), l CCEL 51 (Ont HC)).
It can be argued that an employer must warn an employee before firing that employee for a series of trivial incidents that are not serious enough alone to justify dismissal (''Fonceca v McDonnell Douglas'' (l983), l CCEL 51 (Ont HC)).


==== Condonation ====
==== b) Condonation ====


If an employer’s behaviour indicates that they are overlooking conduct which gives cause, that employer cannot later dismiss the employee without new cause arising; see  (''McIntyre v Hockin (1889)'', 1l6 OAR 498 (CA)).  This applies only where the employer knows of the conduct.  The employer is entitled to reasonable time to decide whether to take action, and this reasonable time period commences at the time that the employer learns of the employee’s conduct.
If an employer’s behaviour indicates that they are overlooking conduct which gives cause, that employer cannot later dismiss the employee without new cause arising; see  (''McIntyre v Hockin (1889)'', 1l6 OAR 498 (CA)).  This applies only where the employer knows of the conduct.  The employer is entitled to reasonable time to decide whether to take action, and this reasonable time period commences at the time that the employer learns of the employee’s conduct.
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The employee carries the burden of proving the condonation; see ''Perry v Papillon Restaurant (1981)'', 8 ACWS (2d) 216.
The employee carries the burden of proving the condonation; see ''Perry v Papillon Restaurant (1981)'', 8 ACWS (2d) 216.


=== Improper Just Cause Allegations as a Litigation Tactic ===
==+= c) Improper Just Cause Allegations as a Litigation Tactic ===+


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.
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.
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Where the company no longer requires the employee, or the employer encounters economic difficulties or undergoes reorganization, the employee is still  entitled to reasonable notice (''Paterson v Robin Hood Flour Mills Ltd (l969)'', 68 WWR 446 (BCSC)). In times of economic uncertainty, redundancy is not cause  for dismissal. The economic motive for terminating a position does not relate to an individual’s conduct and hence is not adequate cause (''Young v Okanagan College Board'' (1984), 5 CCEL 60 (BCSC)).  
Where the company no longer requires the employee, or the employer encounters economic difficulties or undergoes reorganization, the employee is still  entitled to reasonable notice (''Paterson v Robin Hood Flour Mills Ltd (l969)'', 68 WWR 446 (BCSC)). In times of economic uncertainty, redundancy is not cause  for dismissal. The economic motive for terminating a position does not relate to an individual’s conduct and hence is not adequate cause (''Young v Okanagan College Board'' (1984), 5 CCEL 60 (BCSC)).  


“Temporary layoff” is defined in section 1 of the ''ESA''. A B.C. Supreme Court decision, ''Besse v Dr AS Machner Inc'', 2009 BCSC 1316, https://canlii.ca/t/25snv, 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.
“Temporary layoff” is defined in section 1 of the ''ESA''. A B.C. Supreme Court decision, ''Besse v Dr AS Machner Inc'', 2009 BCSC 1316, https://canlii.ca/t/25snv, 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. They 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. Note the Covid-19 temporary extension to the ESA temporary layoff period as described earlier in this chapter.


=== 8. Probationary Employees ===
=== 8. Probationary Employees ===


The Employment Standards Act does not require any payment for length of service during the first three months of employment (s 63).   
The Employment Standards Act does not require any payment for the length of service during the first three months of employment (s 63).   


However, if no probationary period is expressly specified in the employment contract, then the employee may still be entitled to reasonable notice at common law.  The dismissed probationary employee could file a claim in Small Claims Court for wrongful dismissal.
However, if no probationary period is expressly specified in the employment contract, then the employee may still be entitled to reasonable notice at common law.  The dismissed probationary employee could file a claim in Small Claims Court for wrongful dismissal.
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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.
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.


In ''Ly v. British Columbia (Interior Health Authority)'', 2017 BCSC 42, the Court held that if a company wants to fire an employee on probation, it should give the employee a fair chance to prove he or she can do the job.  Otherwise, it may owe severance.   
In ''Ly v. British Columbia (Interior Health Authority)'', 2017 BCSC 42, the Court held that if a company wants to fire an employee on probation, it should give the employee a fair chance to prove they can do the job.  Otherwise, it may owe severance.   


In order to give an employee a fair chance to prove he or she can do the job, companies should do the four following things.  
In order to give an employee a fair chance to prove they can do the job, companies should do the four following things.  


*1. Make the employee aware of how he or she will be assessed during the probation period.  
*1. Make the employee aware of how he or she will be assessed during the probation period.  
*2. Give the employee a reasonable chance to demonstrate his suitability.   
*2. Give the employee a reasonable chance to demonstrate their suitability.   
*3. Think about the employees suitability based not only on work performance but also on personal characteristics such as compatibility and reliability.   
*3. Think about the employees suitability based not only on work performance but also on personal characteristics such as compatibility and reliability.   
*4. Act fairly and with reasonable diligence in assessing suitability.
*4. Act fairly and with reasonable diligence in assessing suitability.
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=== 10. Constructive Dismissal ===
=== 10. Constructive Dismissal ===


In some circumstances, an employer can make fundamental changes to the terms of an employee’s employment in such a way that the employee may be forced to leave their job.  This is called “constructive dismissal”, and an employee who is constructively dismissed is entitled to the same benefits as if he were fired without cause.
In some circumstances, an employer can make fundamental changes to the terms of an employee’s employment in such a way that the employee may be forced to leave their job.  This is called “constructive dismissal”, and an employee who is constructively dismissed is entitled to the same benefits as if they were fired without cause.


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, https://canlii.ca/t/gv93h.  
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, https://canlii.ca/t/gv93h.  
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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, https://canlii.ca/t/hwz7c.   
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, https://canlii.ca/t/hwz7c.   


The imposition of a temporary layoff, where not provided for in the contract, has also been deemed to constitute constructive dismissal (see [[{{PAGENAME}}#7. Redundancy and Layoff | Section V.C.7: Redundancy and Layoff]] for details).  
The imposition of a temporary layoff, where it is not provided for in the contract, has also been deemed to constitute constructive dismissal (see [[{{PAGENAME}}#7. Redundancy and Layoff | Section V.C.7: Redundancy and Layoff]] for details).  


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, https://canlii.ca/t/1hmp7 and ''Potter v. New Brunswick Legal Aid Services Commission'', 2015 SCC 10, [2015] 1 S.C.R. 500, https://canlii.ca/t/ggkhh, 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.  
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, https://canlii.ca/t/1hmp7 and ''Potter v. New Brunswick Legal Aid Services Commission'', 2015 SCC 10, [2015] 1 S.C.R. 500, https://canlii.ca/t/ggkhh, 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. However, an indefinite suspension without pay, particularly if there is no contractual term providing for such suspension, is likely a constructive dismissal.


A constructive dismissal claim is a drastic step for an employee, as it involves the employee leaving work (as though they were fired) and then bringing an action for constructive dismissal. The employee will no longer be receiving compensation from employment, and will instead be seeking to recoup that compensation through a court action.   
A constructive dismissal claim is a drastic step for an employee, as it involves the employee leaving work (as though they were fired) and then bringing an action for constructive dismissal. The employee will no longer be receiving compensation from employment, and will instead be seeking to recoup that compensation through a court action.   
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An employee bringing a claim for constructive dismissal is making a claim for the severance they would have received had they been dismissed without cause.   
An employee bringing a claim for constructive dismissal is making a claim for the severance they would have received had they been dismissed without cause.   


==== Mitigation Required ====
==== a) Mitigation Required ====


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), https://canlii.ca/t/1wqtf for a discussion of the relationship between constructive dismissal and the employee`s duty to mitigate.
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), https://canlii.ca/t/1wqtf for a discussion of the relationship between constructive dismissal and the employee`s duty to mitigate.


==== Condonation ====
==== b) Condonation ====


If an employee accepts the imposed changes without complaint, he or she is considered to have accepted the change, and will therefore be barred from action; however, employees are generally permitted a reasonable time to determine whether they will accept the changes.   
If an employee accepts the imposed changes without complaint, they are considered to have accepted the change, and will therefore be barred from action; however, employees are generally permitted a reasonable time to determine whether they will accept the changes.   


==== Repudiation ====
==== c) Repudiation ====


Employees alleging constructive dismissal bear the risk that the court finds they have repudiated their contract of employment by either leaving the workforce  or commencing legal proceedings against their employer (or both). If a court finds the employee repudiated the contract (i.e. quit instead of being constructively dismissed) then the employee does not get severance.
Employees alleging constructive dismissal bear the risk that the court finds they have repudiated their contract of employment by either leaving the workforce  or commencing legal proceedings against their employer (or both). If a court finds the employee repudiated the contract (i.e. quit instead of being constructively dismissed) then the employee does not get severance.
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=== 13. Aggravated and Punitive Damages ===
=== 13. Aggravated and Punitive Damages ===


==== Aggravated Damages ====
==== a) Aggravated Damages ====


Courts can award aggravated damages if the employer acted unfairly or in bad faith when dismissing the employee, and the employee can prove that they suffered harm as a result of the manner of dismissal.  
Courts can award aggravated damages if the employer acted unfairly or in bad faith when dismissing the employee, and the employee can prove that they suffered harm as a result of the manner of dismissal.  
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The loss must arise as a result of the manner of dismissal, and not due to the dismissal itself.   
The loss must arise as a result of the manner of dismissal, and not due to the dismissal itself.   


An employee should be encouraged to obtain medical evidence such as a doctor’s report connecting this manner of dismissal to a personal injury.  For example, the doctor’s report might document the employee’s depression, anxiety, or other mental harm.  It may be helpful to have a doctor testify in court in order to present a solid case for aggravated damages.  However, an employee can provide his or her own testimony regarding an injury, without medical corroboration, and a court can still consider whether to award aggravated damages.  See ''Lau v. Royal Bank of Canada'', 2017 BCCA 253.  If the employee did not suffer documented harm, see section V.C.13.b: Punitive Damages below.
An employee should be encouraged to obtain medical evidence such as a doctor’s report connecting this manner of dismissal to a personal injury.  For example, the doctor’s report might document the employee’s depression, anxiety, or other mental harm.  It may be helpful to have a doctor testify in court in order to present a solid case for aggravated damages.  However, an employee can provide their own testimony regarding an injury, without medical corroboration, and a court can still consider whether to award aggravated damages.  See ''Lau v. Royal Bank of Canada'', 2017 BCCA 253.  If the employee did not suffer documented harm, see section V.C.13.b: Punitive Damages below.


The basis for these additional damages is a breach of the implied term of an employment contract that employers will act in good faith in the manner of dismissal.  In ''Honda Canada Inc v Keays'', 2008 SCC 39, the Supreme Court of Canada held that any such additional award must be compensatory and must be based on the actual loss or damage suffered by the employee, which can include mental distress stemming from the manner of dismissal.  However, normal distress and hurt feelings arising from the dismissal itself are not grounds for additional damages.
The basis for these additional damages is a breach of the implied term of an employment contract that employers will act in good faith in the manner of dismissal.  In ''Honda Canada Inc v Keays'', 2008 SCC 39, the Supreme Court of Canada held that any such additional award must be compensatory and must be based on the actual loss or damage suffered by the employee, which can include mental distress stemming from the manner of dismissal.  However, normal distress and hurt feelings arising from the dismissal itself are not grounds for additional damages.
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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.
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.


What constitutes “bad faith” is for the courts to decide, and has in the past centred on deception and dishonesty.  Mere “peremptory” treatment is not sufficient: see, for example, ''Bureau v KPMG Quality Registrar Inc'', [1999] NSJ No. 261 (NSCA). Sexual harassment has been held not to give rise to additional damages (''Chiang v Kejo Holdings Ltd'', 2005 BCSC 414).  See, however, ''Sulz v Minister of Public Safety and Solicitor General'', 2006 BCCA 582, where punitive damages were awarded for sexually harassing conduct in the employment context. 
What constitutes “bad faith” is for the courts to decide, and has in the past centred on deception and dishonesty.  Mere “peremptory” treatment is not sufficient: see, for example, ''Bureau v KPMG Quality Registrar Inc'', [1999] NSJ No. 261 (NSCA).  


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


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


*i) where the employer lied to the employee about the reason for dismissal (see ''Duprey v Seanix Technology (Canada) Inc'', 2002 BCSC 1335, where an employer told a commissioned employee he was being released due to financial hardship,  when it was found he was being released so the employer would not have to pay owed commission);
:i) where the employer lied to the employee about the reason for dismissal (see ''Duprey v Seanix Technology (Canada) Inc'', 2002 BCSC 1335, where an employer told a commissioned employee they were being released due to financial hardship,  when it was found they were being released so the employer would not have to pay owed commission);
*ii) where an employer has deceived the employee  about representations of job security (''Gillies v Goldman Sachs Canada'', 2001 BCCA 683);
:ii) where an employer has deceived the employee  about representations of job security (''Gillies v Goldman Sachs Canada'', 2001 BCCA 683);
*iii) where a senior employee was induced to leave his position under the promise of job leading to retirement; and
:iii) where a senior employee was induced to leave their position under the promise of job leading to retirement; and
*iv) where an employer promised an employee he would keep his job after a  merger, although he knew differently (''Bryde v Liberty Mutual'', 2002 BCSC 606). In one case, a response by employer’s counsel to an  employee’s counsel containing an allegation of just cause where none existed was held not to constitute bad faith (''Nahnychuk v Elite Retail Solutions Inc'', 2004 BCSC 746). However, in another province, a letter threatening to allege just cause where none existed, for the purpose of  forcing a settlement, even though just cause was not plead in court, was held to give rise to additional damages (''Squires v Corner Brook Pulp and Paper Ltd'', [1999] NJ No 146 (Nfld CA)); and,  
:iv) where an employer promised an employee they would keep their job after a  merger, although they knew differently (''Bryde v Liberty Mutual'', 2002 BCSC 606). In one case, a response by employer’s counsel to an  employee’s counsel containing an allegation of just cause where none existed was held not to constitute bad faith (''Nahnychuk v Elite Retail Solutions Inc'', 2004 BCSC 746). However, in another province, a letter threatening to allege just cause where none existed, for the purpose of  forcing a settlement, even though just cause was not plead in court, was held to give rise to additional damages (''Squires v Corner Brook Pulp and Paper Ltd'', [1999] NJ No 146 (Nfld CA)); and,  
*v) where an employer has made false accusations about the employee at the time of dismissal.  See Price v 481530 BC Ltd et al, 2016 BCSC 1940, where an employer dismissed an employee on the basis of false allegations of dishonesty contributing to the creation of a hostile work environment and ultimately his constructive dismissal.
:v) where an employer has made false accusations about the employee at the time of dismissal.  See Price v 481530 BC Ltd et al, 2016 BCSC 1940, where an employer dismissed an employee on the basis of false allegations of dishonesty contributing to the creation of a hostile work environment and ultimately their constructive dismissal; and
*vi) Where an employer produced false evidence of the employee’s absence without leave in order to argue just cause for dismissal and only offered ESA minimum severance (''Bailey v. Service Corporation International (Canada) ULC'', 2018 BCSC 235)).
:vi) Where an employer produced false evidence of the employee’s absence without leave in order to argue just cause for dismissal and only offered ESA minimum severance (''Bailey v. Service Corporation International (Canada) ULC'', 2018 BCSC 235)).
:vii) Where a law firm was ordered to pay aggravated damages to an employee for unfair, bullying, and bad faith conduct by her former employer and her former principal. The employer’s objectionable conduct included dismissing the employee without proper investigation, serving the employee a termination letter and a notice of claim in front of her classmates at PLTC (a deliberate public firing), and firing the employee on the basis of harsh and unwarranted accusations based on unfounded suspicions, which allegations were maintained throughout the litigation process. ''Acumen Law Corporation v. Ojanen'', 2019 BCSC 1352, https://canlii.ca/t/j1z2k.


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


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, https://canlii.ca/t/gf84s.   
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, https://canlii.ca/t/gf84s.   
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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.
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.


==== Punitive Damages ====
==== d) Punitive Damages ====


If the conduct of the employer was especially outrageous, harsh, vindictive, reprehensible, or malicious, then the court may award punitive  damages (see ''Honda Canada Inc v Keays''). The focus will be on the employer’s misconduct, and not on the employee’s loss; the damages are not designed to compensate, but rather to punish and deter. Generally, the discretion to award punitive damages has been cautiously exercised and  used only in extreme cases. Courts are wary of the risk of double-compensation where punitive damages and aggravated damages are considered in the same case.   
If the conduct of the employer was especially outrageous, harsh, vindictive, reprehensible, or malicious, then the court may award punitive  damages (see ''Honda Canada Inc v Keays''). The focus will be on the employer’s misconduct, and not on the employee’s loss; the damages are not designed to compensate, but rather to punish and deter. Generally, the discretion to award punitive damages has been cautiously exercised and  used only in extreme cases. Courts are wary of the risk of double-compensation where punitive damages and aggravated damages are considered in the same case.   


Punitive damages are, however, currently on an upward trend in B.C. Since the ''Honda'' decision, courts have generally required medical evidence showing that an employee suffered mental harm in order to award aggravated damages, and this has left certain employees, who are less susceptible to suffering mental harm, without that recourse. The courts are tending to award punitive damages more often now than in the past  in order to make up for this discrepancy. If an employee was treated particularly harshly, but 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 (link  in [[{{PAGENAME}}#13. Aggravated and Punitive Damages | section V.C.13: Aggravated and Punitive Damages]], above).
Punitive damages are, however, currently on an upward trend in B.C. Since the ''Honda'' decision, courts have generally required evidence showing that an employee suffered mental harm in order to award aggravated damages, and this has left certain employees, who are less susceptible to suffering mental harm, without that recourse. The courts are tending to award punitive damages more often now than in the past  in order to make up for this discrepancy. If an employee was treated particularly harshly, but 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 (link  in [[{{PAGENAME}}#13. Aggravated and Punitive Damages | section V.C.13: Aggravated and Punitive Damages]], above).


If the employee has suffered any of the following situations through the employer’s conduct, consider claiming for punitive damages:
If the employee has suffered any of the following situations through the employer’s conduct, consider claiming for punitive damages:
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*Oppression (if the employee is also a shareholder of the corporation)
*Oppression (if the employee is also a shareholder of the corporation)
*Inducement to resign, for example by offering a letter of reference only if the employee resigns (''Vernon v British Columbia (Liquor Distribution Branch)'', 2012 BCSC 133)
*Inducement to resign, for example by offering a letter of reference only if the employee resigns (''Vernon v British Columbia (Liquor Distribution Branch)'', 2012 BCSC 133)
*Misrepresentations by the employer
*Misrepresentations by the employer (''Bailey v. Service Corporation International (Canada) ULC'', 2018 BCSC 235)
*Employer’s behaviour before, during, or after the dismissal
*Employer’s behaviour before, during, or after the dismissal
*Breach of the employee’s privacy
*Breach of the employee’s privacy
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*The tort of intentional infliction of mental distress (''Strudwick v Applied Consumer & Clinical Evaluations Inc.'', 2016 ONCA 520).
*The tort of intentional infliction of mental distress (''Strudwick v Applied Consumer & Clinical Evaluations Inc.'', 2016 ONCA 520).


==== Workplace Investigations ====
==== e) Workplace Investigations ====


Workplace investigations into misconduct must be carried out in a good faith manner without bias.  Unfair process may entitle an employee to aggravated or punitive damages.   
Workplace investigations into misconduct must be carried out in a good faith manner without bias.  Unfair process may entitle an employee to aggravated or punitive damages.   
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=== 15. Duty to Mitigate ===
=== 15. Duty to Mitigate ===


==== Common Law ====
==== a) Common Law ====


Claimants in civil court should be aware that an employee has a common law duty to mitigate his or her losses. An employee does not have to take every action possible to mitigate; instead, reasonable effort is required; see ''Gust v Right-of-Way Operations Group Inc.'', 2016 BCSC 1527.  Searching for similar work is sufficient.  For a discussion of the relevant legal test for mitigation, see ''James v The Hollypark Organization Inc.'', 2016 BCSC 495.
Claimants in civil court should be aware that an employee has a common law duty to mitigate their losses. An employee does not have to take every action possible to mitigate; instead, a reasonable effort is required; see ''Gust v Right-of-Way Operations Group Inc.'', 2016 BCSC 1527.  Searching for similar work is sufficient.  For a discussion of the relevant legal test for mitigation, see ''James v The Hollypark Organization Inc.'', 2016 BCSC 495.


Because of the requirement to mitigate, the employee may have to take another job the employer offers, as long as the new job is not at a lower level than the previous one, and the change does not amount to constructive dismissal. Similarly, a dismissed employee may have to accept an employer’s offer to work through the notice period (''Evans v Teamsters Local Union No 31'', 2008 SCC 20). Retraining may be considered part of mitigation if it is to enter a job field with better prospects. This applies where an employee tries and fails to obtain alternate suitable employment (''Cimpan v Kolumbia Inn Daycare Society'', [2006] BCJ No 3191).
Because of the requirement to mitigate, the employee may have to take another job the employer offers, as long as the new job is not at a lower level than the previous one, and the change does not amount to constructive dismissal. Similarly, a dismissed employee may have to accept an employer’s offer to work through the notice period (''Evans v Teamsters Local Union No 31'', 2008 SCC 20). Retraining may be considered part of mitigation if it is to enter a job field with better prospects. This applies where an employee tries and fails to obtain alternate suitable employment (''Cimpan v Kolumbia Inn Daycare Society'', [2006] BCJ No 3191).
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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.
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.


==== Employment Standards ====
==== b) Employment Standards ====


There is no duty to mitigate in order to receive statutory compensation for length of service  under the ESA. An employee is entitled to  statutory termination pay regardless of whether the employee finds new work.   
There is no duty to mitigate in order to receive statutory compensation for length of service  under the ESA. An employee is entitled to  statutory termination pay regardless of whether the employee finds new work.   


==== Mitigation and Constructive Dismissal ====
==== c) Mitigation and Constructive Dismissal ====


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.
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.


There are some circumstances where an employee’s refusal to accept re-employment with the employer who fired him is found to be a failure to mitigate.  However, this might not be the case if the trust relationship is eroded as result of the employer’s actions.  See ''Fredrickson v. Newtech Dental Laboratory Inc.'', 2015 BCCA 357.
There are some circumstances where an employee’s refusal to accept re-employment with the employer who fired them is found to be a failure to mitigate.  However, this might not be the case if the trust relationship is eroded as a result of the employer’s actions.  See ''Fredrickson v. Newtech Dental Laboratory Inc.'', 2015 BCCA 357.


=== Mitigated damages ===  
==== d) Mitigated damages ====


As severance pay is designed to compensate for lost income, a dismissed employee who found alternate employment after dismissal will have their severance pay reduced by the amount they are able to earn in their new job.
As severance pay is designed to compensate for lost income, a dismissed employee who found alternate employment after dismissal will have their severance pay reduced by the amount they are able to earn in their new job.
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Prior to terminating an employment contract on the basis of frustration, employers should provide the employee with an opportunity to provide any additional medical information which might change their decision. Failure to do so might result in a finding of without cause dismissal, as opposed to frustration of contract.
Prior to terminating an employment contract on the basis of frustration, employers should provide the employee with an opportunity to provide any additional medical information which might change their decision. Failure to do so might result in a finding of without cause dismissal, as opposed to frustration of contract.


== D. Post-Employment Issues ==
== F. Post-Employment Issues ==


=== 1. Restrictive Covenants ===
=== 1. Restrictive Covenants ===
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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).
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).


== When an employer can sue an employee ==
== G. When an employer can sue an employee ==


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.  
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.  
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=== 3. Competition against the employer ===
=== 3. Competition against the employer ===


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, https://canlii.ca/t/1h820). However, employees should be careful not to compete unfairly, or compete using confidential information obtained from their former employer.
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, https://canlii.ca/t/1h820). However, employees should be careful not to compete unfairly, or compete using confidential information obtained from their former employer.


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.
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.
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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.
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.


== F. Other Employment Law Issues ==
== H. Other Employment Law Issues ==


=== 1. Discrimination in Employment ===
=== 1. Discrimination in Employment ===


For provincially regulated employees, the ''Human Rights Code'' prohibits discrimination in employment on the basis of the following prohibited grounds (ss 13, 43):  
For provincially regulated employees, the ''Human Rights Code'' prohibits discrimination in employment on the basis of the following prohibited grounds (''HRC'' ss 13, 43):  
*Race  
*Race  
*Colour  
*Colour  
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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.   
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.  
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 legislation allows employers to impose manadatory retirement, however, the BC provincial statute was amended in 2008 to prohibit this practice
Federal legislation allows employers to impose manadatory retirement, however, the BC provincial statute was amended in 2008 to prohibit this practice
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The bullying or harassment could potentially constitute a constructive dismissal for which the employee could claim damages in court; see V.C.10: Constructive Dismissal.
The bullying or harassment could potentially constitute a constructive dismissal for which the employee could claim damages in court; see V.C.10: Constructive Dismissal.


Finally, if the bullying or harassment is of an extremely serious nature, such as serious sexual harassment, consider whether the behaviour might be criminal and whether the police should be contacted.
Finally, if the bullying or harassment is of an extremely serious nature, such as serious sexual harassment, consider whether the behaviour might be criminal and whether the police should be contacted. See also section 29, Sexual Misconduct and Bad Faith, earlier in this chapter.


=== 4. Retaliation for Filing a Complaint ===
=== 4. Retaliation for Filing a Complaint ===
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A person must not evict, discharge, suspend, expel, intimidate, coerce, impose any pecuniary or other penalty on, deny a right or benefit to  or otherwise discriminate against a person because that person complains or is named in a complaint, gives evidence or otherwise assists in a complaint or other proceeding under this Code (s 43). If a person is discriminated against in such a manner, they may file a complaint at the  Human Rights Tribunal in the same way that they would complain about any other discriminatory practice; see [[BC Human Rights Code (6:III)#C. The Complaint Process | Chapter 6: Human Rights, Section III.C: The Complaint Process]].  
A person must not evict, discharge, suspend, expel, intimidate, coerce, impose any pecuniary or other penalty on, deny a right or benefit to  or otherwise discriminate against a person because that person complains or is named in a complaint, gives evidence or otherwise assists in a complaint or other proceeding under this Code (s 43). If a person is discriminated against in such a manner, they may file a complaint at the  Human Rights Tribunal in the same way that they would complain about any other discriminatory practice; see [[BC Human Rights Code (6:III)#C. The Complaint Process | Chapter 6: Human Rights, Section III.C: The Complaint Process]].  


==== Workers Compensation Act ====
==== a) Workers Compensation Act ====


Employers and unions must not take or threaten discriminatory action against a worker for taking various actions in regards to the Act, such  as reporting unsafe working conditions to a WorkSafe officer (s 151). Remedies include the ability to reinstate the worker to their job (s 153). Additional details are set out in the ''Workers Compensation Act'', Division 6 – Prohibition Against Discriminatory Action.  For more information on the Workers Compensation Act and WorkSafeBC, see Chapter 7 of this manual.
Employers and unions must not take or threaten discriminatory action against a worker for taking various actions in regards to the Act, such  as reporting unsafe working conditions to a WorkSafe officer (s 151). Remedies include the ability to reinstate the worker to their job (s 153). Additional details are set out in the ''Workers Compensation Act'', Division 6 – Prohibition Against Discriminatory Action.  For more information on the Workers Compensation Act and WorkSafeBC, see Chapter 7 of this manual.


==== Common Law Issues/Internal Complaints ====
==== b) Common Law Issues/Internal Complaints ====


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.
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.
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=== 7. Employee's Privacy ===
=== 7. Employee's Privacy ===


==== Legislation ====
==== a) Legislation ====


There are three statutes in BC that concern privacy.  
There are three statutes in BC that concern privacy.  
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The ''Personal Information Protection Act'', SBC 2003, c 63, [''PIPA''] applies to almost all organizations that are not public bodies covered  by ''FOIPPA''. It governs the collection, use, and disclosure of personal information, including employees’ personal information.   
The ''Personal Information Protection Act'', SBC 2003, c 63, [''PIPA''] applies to almost all organizations that are not public bodies covered  by ''FOIPPA''. It governs the collection, use, and disclosure of personal information, including employees’ personal information.   


==== Balancing Employer and Employee Interests ====
==== b) Balancing Employer and Employee Interests ====


Generally, employers can collect information that is reasonably necessary in the circumstances. Some of the factors to be considered are whether the collection of the personal information is required to meet a specific need, whether the collection of information is likely to meet that need, whether the loss of privacy is proportional to the benefit gained, and whether there are less privacy-invasive methods of achieving the same end, per ''Eastmond v Canadian Pacific Railway'', 2004 FC 852. In that case, surveillance of a rail yard was permitted after there  were a number of incidents of theft, trespassing, and vandalism. GPS tracking of employees’ work vehicles has also been permitted (''Schindler Elevator Corporation'', Order P12-01, 2012 BCIPC 25), though it generally necessary for the employer to inform the employee of the GPS tracking.  
Generally, employers can collect information that is reasonably necessary in the circumstances. Some of the factors to be considered are whether the collection of the personal information is required to meet a specific need, whether the collection of information is likely to meet that need, whether the loss of privacy is proportional to the benefit gained, and whether there are less privacy-invasive methods of achieving the same end, per ''Eastmond v Canadian Pacific Railway'', 2004 FC 852. In that case, surveillance of a rail yard was permitted after there  were a number of incidents of theft, trespassing, and vandalism. GPS tracking of employees’ work vehicles has also been permitted (''Schindler Elevator Corporation'', Order P12-01, 2012 BCIPC 25), though it generally necessary for the employer to inform the employee of the GPS tracking.  
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