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

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

==== b) Condonation ====

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, https://canlii.ca/t/1fn5d), or giving the employee a promotion (''Miller v Wackenhut of Canada Ltd'', [1989] OJ No 1993).

However, if the employer already knew of the employee’s misconduct, but terminated the employee without alleging cause or gave the employee a letter of reference, in some cases the employer has been held to be estopped from alleging cause or has been taken to have condoned the employee’s misconduct.  However, there is conflicting case law on this subject and many cases have held that the employer may still allege cause. See ''Smith v Pacific Coast Terminals'', 2016 BCSC 1876; ''Technicon Industries Ltd v Woon'', 2016 BCSC 1543.

 

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

=== 7. Redundancy and Layoff ===

“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.

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.   

*1. Make the employee aware of how he or she will be assessed during the probation period.  

=== 9. Near Cause ===

The Supreme Court of Canada in ''Dowling v Halifax (City)'', [1998] 1 SCR 22, https://canlii.ca/t/1fqwm expressly rejected near cause as grounds for reducing the notice period. This decision has been consistently followed.

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.   

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.   

To be effective, resignation must be clear and unequivocal. There must be a clear statement of an intention to resign, or conduct from which that intention  would clearly appear. See ''Koos v A & A Customs Brokers Ltd.'' (2009 BCSC 563).  

=== 12. Sale of a Business ===

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

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.

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 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.   

*Defamation

A flawed workplace investigation followed by a dismissal can attract aggravated damages; see ''Lau v. Royal Bank of Canada'', 2015 BCSC 1639; ''Kong v. Vancouver Chinese Baptist Church'', 2015 BCSC 1328; and ''George v. Cowichan Tribes'', 2015 BCSC 513.

=== 14. Sexual Misconduct and Bad Faith ===

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

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).

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.

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.

=== 16. Employment Insurance Payback ===

The duties listed below are generally implied in employment contracts. This list of duties is not exhaustive.  

Employees owe a duty of good faith to the employer; this is an implied term of employment contracts. An employee might breach this by actively working against one of their employment duties; for example, a supervisor who is supposed to retain employees could breach this duty by inducing the employees they supervise to resign in order to complete against the employer. See ''RBC Dominion Securities Inc v Merrill Lynch Canada Inc'', 2008 SCC 54, and ''Consbec Inc. v Walker'', 2016 BCCA 114, for further details.

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. In rare cases, employers can be awarded damages against employees who do not provide sufficient notice of resignation; see Gagnon & Associates Inc. et. al. v Jesso et. al., 2016 ONSC 209, https://canlii.ca/t/gmvlz..

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.

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.

There must be no discrimination in wages paid (s 12). Men and women must receive equal pay for similar or substantially similar work.  Similarity is to be determined having regard to the skill, effort, and responsibility required by a job.  

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.   

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. See also section 29, Sexual Misconduct and Bad Faith, earlier in this chapter.

A provincially regulated employee might file a complaint against an employer at the Employment Standards Branch, the Human Rights Tribunal, or  with WorkSafe. The ''Employment Standards Act'', the ''Human Rights Code'', and the ''Workers Compensation Act'' each contain provisions which prohibit retaliation for filing complaints.

An employer may not threaten, terminate, suspend, discipline, penalize, intimidate, or coerce an employee because the employee filed a complaint under the ''ESA'' (s 83). If this does happen, the Employment Standards Branch may order that the employer comply with the section,  cease doing the act, pay reasonable expenses, hire or reinstate the employee and pay lost wages, or pay compensation (s 79). A complaint may be filed with the Employment Standards Branch.

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]].  

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.

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 ====