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Difference between revisions of "Employment Law Issues (9:V)"
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Employment Law Issues (9:V) (view source)
Revision as of 18:14, 24 August 2023
, 18:14, 24 August 2023no edit summary
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{{REVIEWED LSLAP | date= July | {{REVIEWED LSLAP | date= July 11, 2023}} | ||
{{LSLAP Manual TOC|expanded = employment}} | {{LSLAP Manual TOC|expanded = employment}} | ||
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Section 9 of the ESA states that children under the age of 15 cannot be employed unless the employer has obtained written permission from a parent or guardian. The employer must have this written consent on file indicating that the parent or guardian knows where the child is working, the hours of the work, and the type of work. No person shall employ a child under the age of 12 years unless the employer has obtained permission from the Director of Employment Standards. In cases where permission from the Director is required, the Director may also set conditions of employment for the child. See ''ES Regulation'', Part 7.1. For complete details of conditions, see www.labour.gov.bc.ca/esb or call 1-800-663-7867. | Section 9 of the ESA states that children under the age of 15 cannot be employed unless the employer has obtained written permission from a parent or guardian. The employer must have this written consent on file indicating that the parent or guardian knows where the child is working, the hours of the work, and the type of work. No person shall employ a child under the age of 12 years unless the employer has obtained permission from the Director of Employment Standards. In cases where permission from the Director is required, the Director may also set conditions of employment for the child. See ''ES Regulation'', Part 7.1. For complete details of conditions, see www.labour.gov.bc.ca/esb or call 1-800-663-7867. | ||
Common forms of allowable employment for those under 12 are found in the film and television industries. For more information on the employment of young people in the B.C. entertainment industry, consult the [ | Common forms of allowable employment for those under 12 are found in the film and television industries. For more information on the employment of young people in the B.C. entertainment industry, consult the [https://www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards/hiring/young-people Employment Standards Branch fact sheet] | ||
If an employer is accused of illegally using child employment they will carry the onus in proving that it was either justified, or that the child was of legal age. | If an employer is accused of illegally using child employment they will carry the onus in proving that it was either justified, or that the child was of legal age. | ||
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=== 9. Statutory Holidays and Statutory Holiday Pay === | === 9. Statutory Holidays and Statutory Holiday Pay === | ||
Employees are entitled to ten paid holidays a year: New Year’s Day, Family Day, Good Friday, Victoria Day, Canada Day, B.C. Day, Labour Day, Thanksgiving Day, Remembrance Day, and Christmas Day (''ESA'', Part 5). Boxing Day, Easter Sunday, and Easter Monday are not statutory holidays in B.C. Federal employees are entitled to Boxing Day and National Day for Truth and Reconciliation, but not to B.C. Day or Family Day. | Employees are entitled to ten paid holidays a year: New Year’s Day, Family Day, Good Friday, Victoria Day, Canada Day, B.C. Day, Labour Day, Thanksgiving Day, Remembrance Day, and Christmas Day (''ESA'', Part 5). A recent amendment to the Employment Standards Act (''ESA'', V.A.9) added the National Day for Truth and Reconciliation as a statutory holiday. Boxing Day, Easter Sunday, and Easter Monday are not statutory holidays in B.C. Federal employees are entitled to Boxing Day and National Day for Truth and Reconciliation, but not to B.C. Day or Family Day. | ||
For a provincially regulated employee to be entitled to a statutory holiday under the Employment Standards Act, the employee must have been employed by the employer for at least 30 calendar days before the statutory holiday and must either have worked under an averaging agreement within this period or have worked or earned wages for 15 of these 30 calendar days. | For a provincially regulated employee to be entitled to a statutory holiday under the Employment Standards Act, the employee must have been employed by the employer for at least 30 calendar days before the statutory holiday and must either have worked under an averaging agreement within this period or have worked or earned wages for 15 of these 30 calendar days. | ||
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==== d) Canadian Emergency Response Benefit (“CERB”) and Damages ==== | ==== d) Canadian Emergency Response Benefit (“CERB”) and Damages ==== | ||
There is evolving jurisprudence on whether CERB benefits received by an employee should be deducted from an employee’s damages for wrongful dismissal. A few recent cases support the proposition that CERB benefits should not be deducted from an employee’s severance award (see Slater v. Halifax Herald Limited, 2021 NSSC 210, https://canlii.ca/t/jghck & Fogelman v. IFG, 2021 ONSC 4042). However, as this question is relatively new and is evolving, be sure to review the most current state of the law on this issue. | There is evolving jurisprudence on whether CERB benefits received by an employee should be deducted from an employee’s damages for wrongful dismissal. A few recent cases support the proposition that CERB benefits should not be deducted from an employee’s severance award (see Slater v. Halifax Herald Limited, 2021 NSSC 210, https://canlii.ca/t/jghck & Fogelman v. IFG, 2021 ONSC 4042). However, as this question is relatively new and is evolving, be sure to review the most current state of the law on this issue. | ||
==== e) COVID-19 and Vaccine Passports ==== | |||
Courts in British Columbia have generally dismissed constitutional challenges and civil suits brought against the province in relation to the vaccine passport, restrictions, and health orders arising from the pandemic. For example, see the following decisions: | |||
In Kassian v. British Columbia 2022 BCSC 1603, three petitioners challenged the constitutionality of the vaccine passport provisions. Specifically, they argued that the medical exemption regime discriminated against persons with disabilities, contrary to section 15 of the Charter, and is unjustly coercive, contrary to section 7 of the Charter. The BCSC explained that the petitioners did not exhaust the remedies available to them under the legislative scheme; specifically, there was no evidence that the petitioners pursued the necessary medical opinions to support exemption requests from the vaccine passport. As such, the court declined to address the petitioner’s Charter claims. | |||
In Eliason v. British Columbia (Attorney General), 2022 BCSC 1604, the petitioners sought judicial review realted certain public health orders which mandated vaccination as a prerequisite for entry to certain businesses and events. The petitioners did not challenge the unconstitutionality of the public health orders themselves; rather, they alleged that it was unconstitutional for the government to provide “an effective, comprehensive, and accessible regime for medical exemptions in the Orders provisions” (para. 37). The Courts declined to consider the petitioners argument in respect to a Charter violation, on the grounds that two of the petitioners had alternate remedies available to them (in this case, vaccine exemption requests). | |||
For further examples, see Maddock v. British Columbia, 2022 BCSC 1605 and Canadian Society for the Advancement of Science in Public Policy v. British Columbia, 2022 BCSC 1606. | |||
== C. The ESA and Covid-19 == | == C. The ESA and Covid-19 == | ||
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When an employee is fired without being provided reasonable notice of dismissal or being paid money in lieu of reasonable notice (i.e., severance), the employee may have a breach of contract claim. The failure to provide reasonable notice (or pay in lieu) is also referred to as a wrongful dismissal. See [[Section V.C: Termination of Employment (V.C) | Section V.C: Termination of Employment]]. | When an employee is fired without being provided reasonable notice of dismissal or being paid money in lieu of reasonable notice (i.e., severance), the employee may have a breach of contract claim. The failure to provide reasonable notice (or pay in lieu) is also referred to as a wrongful dismissal. See [[Section V.C: Termination of Employment (V.C) | Section V.C: Termination of Employment]]. | ||
Courts may rule favorably for employees in costs awards where an employee is forced to sue to obtain a reasonable severance. In Janmohamed v Dr . Zia Medicine PC 2022 ONSC 6561, the parties could not agree on a costs valuation after the plaintiff accepted the defendant’s Rule 49 offer. The Court awarded the plaintiff a significant costs award on the basis that the employers should not be incentivized to offer employees insufficient severance, forcing employees to sue to obtain what is justly due. | |||
=== 2. Constructive Dismissal Claims === | === 2. Constructive Dismissal Claims === | ||
If an employer has unilaterally changed a fundamental term of the employee’s employment in a significant way, the employee may have been “constructively dismissed” and may be entitled to damages. See [[#C. Termination of Employment | Section V.C: Termination of Employment]]. Examples of unilateral significant changes to fundamental terms of employment include significant changes to the type of work done by an employee, significant decreases to the employee’s rate of pay, or significant changes to other working conditions. | If an employer has unilaterally changed a fundamental term of the employee’s employment in a significant way, the employee may have been “constructively dismissed” and may be entitled to damages. See [[#C. Termination of Employment | Section V.C: Termination of Employment]]. Examples of unilateral significant changes to fundamental terms of employment include significant changes to the type of work done by an employee, significant decreases to the employee’s rate of pay, or significant changes to other working conditions. | ||
In a cautionary tale for employees, the Alberta Court of Appeal ruled in Kosteckyj v Paramount Resources Ltd, 2022 ABCA 230 that 10 business days were enough for an employee to decide if a change imposed on him was a constructive dismissal. The employee’s delay of more than 10 days in objecting to the change was a factor the ABCA used in overturning a constructive dismissal finding at trial. Employees considering making a constructive dismissal should be cautious not to delay action when a significant change is imposed on their terms of employment. | |||
=== 3. Bonus Clause Claims === | === 3. Bonus Clause Claims === | ||
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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). | 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). | ||
In Chu v China Southern Airlines Company Ltd, 2023 BCSC 21, degrading demotions, humiliating public discipline, and the special insult (to the Chinese descent plaintiff) of being fired on Chinese New Years resulted in an aggravated damages award of $50,000. Punitive damages of $100,000 were awarded in connection with hardball litigation tactics, including a pattern of | |||
conduct on the part of the defendant designed to stall and frustrate the prosecution, the high degree of the defendant’s blameworthiness for its abusive and deliberate conduct, the vulnerability of the plaintiff, the profoundly harmful nature of the conduct, and the need for an award of sufficient size to act as deterrence and denunciation towards a large corporation. | |||
==== b) Bad Faith Performance of Contracts ==== | ==== b) Bad Faith Performance of Contracts ==== | ||
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In many cases, the duty to mitigate may require a constructively dismissed employee to stay on the job while seeking other employment (''Cayen v Woodwards Stores Ltd'' (1993), 75 BCLR (2d) 110 (CA)). | In many cases, the duty to mitigate may require a constructively dismissed employee to stay on the job while seeking other employment (''Cayen v Woodwards Stores Ltd'' (1993), 75 BCLR (2d) 110 (CA)). | ||
Similarly, the duty to mitigate may also require a dismissed employee to accept an offer of re-employment from the employer who dismissed them. Even if an employer makes an offer of re-employment to a dismissed employee only after receiving a demand letter from the employee’s lawyer, the employee may still be required to consider and/or accept that offer, and a failure to do so may be considered a failure to mitigate. In Blomme v. Princeton Standard Pellet Corporation 2023 BCSC 652, the Court highlighted that even if the offer of | |||
return to work is precipitated by a demand letter, this does not relieve the employee of obligation to consider the offer, and an employee’s refusal may be considered a failure to mitigate. | |||
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. | 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. | ||
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If an employee receives damages for wrongful dismissal, this money is treated as earnings, and the employee will be required to pay back the appropriate amount of EI benefits received while waiting for the court case to be heard (EI benefits are not deducted from the amount of the damage award). Note that the employee may be able to receive the EI benefits back again if they are still unemployed and searching for work after the period covered by the severance award; call Service Canada at 1-800-206-7218 for further details if this situation may apply to the employee. | If an employee receives damages for wrongful dismissal, this money is treated as earnings, and the employee will be required to pay back the appropriate amount of EI benefits received while waiting for the court case to be heard (EI benefits are not deducted from the amount of the damage award). Note that the employee may be able to receive the EI benefits back again if they are still unemployed and searching for work after the period covered by the severance award; call Service Canada at 1-800-206-7218 for further details if this situation may apply to the employee. | ||
In LaFleche v. NLFD Auto dba Prince George Ford (No. 2), 2022 BCHRT 88, the BC Human Rights Tribunal awarded lost wages, $14,000 for injury to dignity, and $29,000 in foregone EI maternity leave benefits to an employee who was not returned to her job after maternity leave because the employer kept the worker who covered the maternity leave. The Tribunal awarded $29,000 in foregone EI maternity leave benefits because the employee had a second child and did not have enough insurable hours to collect EI maternity leave benefits for her second child. | |||
=== 17. Frustration of Contract === | === 17. Frustration of Contract === | ||
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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. | ||
=== 6. Time Theft === | |||
In Besse v. Reach CPA Inc, 2023 BCCRT 27 , the BC Civil Resolution Tribunal ordered an employee to repay her employer wages received after the Tribunal found the employee was guilty of time theft. The employee had brought action against their employer for wrongful dismissal, and the employer counter-claimed for “time theft,” alleging that the employee had collected wages for hours not actually worked. The Court accepted evidence via a time-tracking software installed on the employee’s computer, which recorded the amount of time that the employee accessed specific web-services during work hours. | |||
== H. Other Employment Law Issues == | == H. Other Employment Law Issues == | ||
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Family status protection includes childcare and family obligations. See Johnstone v Canada Border Services, 2010 CHRT 20, https://canlii.ca/t/2cs2j. In Harvey v Gibraltar Mines Ltd. (No. 2), 2020 BCHRT 193, https://canlii.ca/t/jbnsk, the BCHRT determined that the requirement to show a change in working conditions may not be necessary to demonstrate discrimination based on family status. | Family status protection includes childcare and family obligations. See Johnstone v Canada Border Services, 2010 CHRT 20, https://canlii.ca/t/2cs2j. In Harvey v Gibraltar Mines Ltd. (No. 2), 2020 BCHRT 193, https://canlii.ca/t/jbnsk, the BCHRT determined that the requirement to show a change in working conditions may not be necessary to demonstrate discrimination based on family status. | ||
Outstanding confusion about whether a change to term of employment was needed for there to be family status discrimination was recently clarified in British Columbia (Human Rights Tribunal) v. Gibraltar Mines Ltd., 2023 BCCA 168. The court confirmed that an employer does not need to change a term of employment in order for Family Status accommodation obligations to be triggered. In other words, there can be discrimination if a term of employment results in a serious interference with a substantial family obligation. | |||
Included in the protected ground of sex is the protection of employees from sexual harassment in the workplace. The analysis of sexual harassment by the BC Human Rights Tribunal may be shifting away from requiring the complainant to prove that the sexual harassment was unwelcome in an objective sense. As elucidated in Ms K v Deep Creek Store and another, 2021 BCHRT 158, https://canlii.ca/t/jkspm, to find sexual harassment contrary to the Code, the Tribunal “must determine that the conduct is unwelcome or unwanted. The burden on the complainant is to prove that they were adversely impacted by the sexualized conduct. If they do so, it is implicit in that finding that the conduct is unwelcome. It is open to a respondent to challenge an alleged adverse impact, so long as they do not rely on gender‐based stereotypes and myths.” | Included in the protected ground of sex is the protection of employees from sexual harassment in the workplace. The analysis of sexual harassment by the BC Human Rights Tribunal may be shifting away from requiring the complainant to prove that the sexual harassment was unwelcome in an objective sense. As elucidated in Ms K v Deep Creek Store and another, 2021 BCHRT 158, https://canlii.ca/t/jkspm, to find sexual harassment contrary to the Code, the Tribunal “must determine that the conduct is unwelcome or unwanted. The burden on the complainant is to prove that they were adversely impacted by the sexualized conduct. If they do so, it is implicit in that finding that the conduct is unwelcome. It is open to a respondent to challenge an alleged adverse impact, so long as they do not rely on gender‐based stereotypes and myths.” | ||