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For Employees

Can I Be Fired For Being Off Sick With The Flu?

Is influenza a disability under the Human Rights Code?
The answer may surprise you.

Runny noses, stuffed sinuses, headaches, pain and soreness. Yes, it is that time of year again – flu season. So how does the flu affect employees?

The flu and other viruses often result in significant time being taken away from work, which can influence an employee’s pay if they don’t have full sick leave benefits.

The absence of an employee from the workplace can also cause employers great frustration. Employers must then get others to step up or step in to fill the vacancies. In rare instances, this frustration can boil over and employers may even dismiss an ill employee.

You might think that the dismissal of an ill employee would be considered discrimination and, consequently, that the Human Rights Code would come into play. Section 13 of the Human Rights Code prohibits discrimination in employment on several grounds including physical or mental disability. Over the years, disability under the Human Rights Code and other similar pieces of legislation has been interpreted to include many ailments and conditions including depression, alcoholism, migraine headaches, kleptomania, drug addiction, obesity, and there is even one case where smoking was considered a disability.

So of course, the flu would be considered a disability too, right?

Surprisingly, the answer is generally no.

There are numerous decisions where influenza has been held not to be a disability for the purposes of the Human rights Code. See, for example, Chang v. B.C. (Ministry of Small Business and Revenue) (No. 2), 2007 BCHRT 148 wherein a woman alleged that she was, in part, discriminated against because she was suffering from influenza. The Tribunal considered whether influenza constitutes a physical disability. In coming to a decision, the Tribunal considered the law with respect to a physical disability under the Human Rights Code in British Columbia and found that a physical disability must meet the following definition:

The concept of physical disability, for human rights purposes, generally indicates a physiological state that is involuntary, has some degree of permanence, and impairs the person’s ability, in some measure, to carry out the normal functions of life.

In the Chang case, the BC Human Rights Tribunal concluded that that the flu did not meet the above definition, and was not a disability under the Human Rights Code.

In another case, O’Brien v. Phoenix Restorations and others (No. 2), 2009 BCHRT 203, the Tribunal held that flu generally does not have enough permanence to be considered a disability under the Human Rights Code.

To the surprise of many, the Human Rights Code only prohibits some types of discrimination, not all types of discrimination as illustrated by the above cases.

So if you are terminated because of flu, are you without recourse?

No, you wouldn’t be without recourse – in most circumstances, termination of employment related to an employee’s flu or cold is in not termination for just cause, which means that an employee in such a scenario can pursue a claim for severance or pay in lieu of notice. This may be true even if you are let go during your probationary period.

Has your employer terminated your employment because of the flu, or has your employer changed your terms of employment after you have been ill?  If so, and if you have concerns about your rights in such a scenario, please do not hesitate to contact us today for a consultation.

Computer Based Hiring and Its Impact on Employees and Employment Law in BC

How technology in the hiring process may hold some benefit to employees at the time of hire, but could hurt them at the end of their employment.

Last month, NPR published an interesting story that caught my attention – the story was about the increased use of computerized hiring practices around the world.

While it is by no means the norm, increasingly, potential employees are encountering employers who are utilizing computerized hiring practices to aid in the selection of new hires.  I thought it would be interesting to explore how this emerging practice might impact employees specifically, and employment law generally.

With a computerized hiring process, employers use computer software to ask prospective employees questions that help gauge whether that individual is likely to be a successful additional to the business.  Employers, and thus the computers and software they use, know whether an employee is more likely to be successful based upon the characteristics of past employees that have been successful within their organization. By hiring employees with those same characteristics, it is expected that employers are better able to successfully place new candidates and, in turn, reduce turnover rates and the related training expenses.

Although the system doesn’t guarantee that every job will work out for the hired employee, it does increase the likelihood that an employee will be placed good fit with an organization that is a good fit.

This emerging trend is likely to benefit employees by providing them with them an increased likelihood of taking on stable employment.  However, computerized hiring is also likely to have a far reaching impact on employment law, especially as this technology develops and becomes more common place.

One can reasonably expect that the use of computerized practices will reduce bias in the hiring process. By focusing on particular traits and characteristics to select candidates, not only does software-based hiring process have the potential to chip away at the age-old notion of it’s not what you know, but who you know, it also has the potential to reduce incidents of discrimination based on age, sex, race, sexual orientation and the like related to hiring practices.

Also, as computerized hiring becomes more common and as the software and process is tweaked and fine-tuned, it’s likely that more employees will be placed in positions that suit them. While this will by no means eliminate wrongful dismissals from occurring, such hiring could potentially reduce the number of wrongful dismissal claims as employees are more likely to be suitable for and successful in their positions.

Finally, as software is used more frequently in the hiring process, it is more likely that such software will remind, or even require, employers to sign written employment contracts with their employees.

Unfortunately, although having a written employment contract in place will provide employees with some certainty in their employment, it is likely to affect employees negatively. Often written contracts between employees and employers subject employees to entitlements, particularly on termination, that are less than what they would receive without a written contract (also known as what employees would receive at common law – for more information see my earlier blog post on severance entitlements).

In the coming years, it will be interesting to see how this emerging technology and process affects employment law.

Should you have questions regarding a hiring process, severance, contracts or other employment law related matters, please contact us today.

Can Employers Sue Employees?

I’ve made a mistake at work
– can my employer sue me?

You might think that an employment contract would be like any other contract:  breach the contract, risk having to compensate the other party.  You’ll be happy to know that is not necessarily the case with employment contracts in Canada.

In the case of Kirby v. Amalgamated Income Limited Partnership, 2009 BCSC 1044, the Court was asked to consider whether an employer could sue an employee and claim compensation from the employee.  In this case, the court decided that mere error, incompetence or negligence was not enough to entitle an employer to claim compensation from an employee.

The Ontario Court of Appeal in the case of Douglas v. Kinger, 2008 ONCA 452 suggests that an employee can be liable in situations where there is wilful misconduct on the part of an employee. Overall though, the case law suggests that for an employee to be liable to the employer, there must be a breach of the employment contract that is breach of a fundamental term of employment –otherwise known as a “fundamental breach”.

What , then, is considered a “fundamental breach”?

Numerous cases have considered the definition of fundamental breach. In Hunter Engineering Co. v. Syncrude Canada Ltd. [1989] 1 S.C.R. 426, the Supreme Court of Canada indicates that a fundamental breach occurs:

“Where the event resulting from the failure by one party to perform a primary obligation has the effect of depriving the other party of substantially the whole benefit which it was the intention of the parties that he should obtain from the contract”.

To break that down in the employment context, a fundamental breach requires the following:

(a)   the employee must fail to perform a primary obligation of their employment; and

(b)   this failure on the part of the employee must, in turn, substantially deprive the employer of the whole benefit that the employer was to obtain from the employee.

Luckily for employees, fundamental breaches will not be common.

You should note that if you are an independent contractor, the above does not apply to you.  Independent contractors will often be liable for breaches of contract whether they are fundamental or not.

The above is not to say that you, as an employee, aren’t responsible for your actions. Of course you are!  However, typically employees are held responsible for their actions by way of disciplinary measures rather than lawsuits.  Discipline can be applied even where breaches are not fundamental in nature, and can include warning letters, suspension, or even termination of employment.

If you are concerned that your employer may want to sue you, and wish to get legal advice on the matter, please do not hesitate to contact us for a consultation today.

BC’s New Limitation Act – What Employees Need to Know

Generally speaking, the Limitation Act is the legislation that sets out the time that parties have to start court proceedings pursuing their claim. The time one has to sue is called a “limitation period”.

The previous Limitation Act (the “Old Act” for ease of reference), provided for two, six and ten year limitation periods depending on the type of claim, with most employment related claims subject to the six year limitation period.

On June 1, 2013, a new Limitation Act (the “New Act”) came into effect in British Columbia. Under this New Act, most employment related claims are now subject to a two year limitation period.

The New Act’s limitation periods will apply to claims arising from acts or omissions that occur and are discovered on or after June 1, 2013.

Claims where the act or omission occurred and was discovered prior to June 1, 2013, will continue to fall under the Old Act.

So what does this mean for employees?

It means that if you have an employment-related claim against your employer that arises on or after June 1, 2013, you generally have two years to sue your employer in relation to that claim. If you do not sue within two years, you may lose your claim.

So for example, if you were wrongfully dismissed on June 1, 2013, then that you would typically have two years from that date to pursue a wrongful dismissal claim. If the you wait more than two years from June 1, 2013, you may lose the ability to pursue a wrongful dismissal claim.

If you were wrongfully dismissed from your job on March 1, 2013, then you continue to have six years from that date to pursue your claim as the Old Act, which has a six year time-limit for most wrongful dismissal claims, continues to apply.

That being said, there are certain provisions under the Limitation Act that may allow you more time to sue in cases of disability or minors. It’s also possible that an employee and an employer could agree to a limitation period that is different from that set out in the Limitation Act.

It should be noted that the new Limitation Act does not extend the usual six-month time limit for filing a complaint with the Employment Standards Branch in British Columbia.

In the end, you should be aware of the time limits relating to any potential claim against your employer. If you wait too long, you may lose your claim.

For more information on how the Limitation Act affects your particular situation, please contact us to schedule a meeting.

Partnership Agreements

Are you an employee who has been asked to join a partnership?

A partner being forced to leave?

Either way, you should be aware of Fasken Martineau DuMoulin LLP v. British Columbia (Human Rights Tribunal), a recent British Columbia Court of Appeal decision that ruled that partners are not employees.

The case involved John Michael McCormick, who was a partner at the law firm of Faskin Martineau DuMoulin LLP. As a partner, Mr. McCormick had to sign a partnership agreement, which gave him an ownership interest in the firm, and entitled him to a share of the firm’s profits. Mr. McCormick turned 65 in March, 2010, and pursuant to a partnership agreement, was obligated to retire on January 31, 2011. Mr. McCormick wished to continue to work for Faskin Martineau, but the firm and Mr. McCormick were unable to come to an agreement that would allow him to continue to practice.

Mr. McCormick then filed a complaint with the Human Rights Tribunal claiming that he was discriminated against on the basis of age in his employment. The Human Rights Tribunal found that it had jurisdiction and that Mr. McCormick was discriminated against in his employment.

Faskin Martineau sought a judicial review of this decision in the Supreme Court of British Columbia arguing that the Human Rights Tribunal did not have jurisdiction as Mr. McCormick was not an employee. (Note: a judicial review is not the same as an appeal. A judicial review considers the procedural fairness and correctness of the decision Human Rights Tribunal). The judge ruled that the Human Rights Tribunal did have jurisdiction to consider the matter, and that Mr. McCormick was discriminated against in his employment.

Faskin Martineau appealed the Supreme Court decision and took the matter to the British Columbia Court of Appeal. The Court of Appeal ruled that partners are not employees of the partnership in which the person is a partner. In making its decision, the Court of Appeal ruled that a person cannot be their own employee. As such, the Human Rights Tribunal was without jurisdiction to consider the matter.

The McCormick case concerned the Human Rights Code. It is important to note that it’s possible that for a person to be an employee for the purposes of one piece of legislation, but not for another. That being said, courts and tribunals often use similar tests when determining whether an individual is an employee.

In practice, particularly in mid to large sized partnerships, some partners take on a role that is much more similar to that of an employee than a partner. The McCormick decision tells us that the rights available to a partner (an owner of the business) versus the rights of a non-owning employee upon being forced or required to leave the business can be quite different. While employees may be able to make human rights complaints and claim severance, it appears that partners are left without such remedies.

If you are about to sign a partnership agreement, you should ensure that you are fully aware of its terms, and that you will be satisfied with those terms in the future – you may not be able to renegotiate those terms later on. You should also be aware that by becoming a partner, you may be signing away some of the rights you would otherwise have as an employee. If you would like to have legal advice about entering into a partnership, please contact us today.

If you are a partner who has been or is being forced to leave the partnership, your rights and remedies will depend on whether you have an agreement with your fellow partners. As the facts will make each situation unique, we encourage you to get legal advice regarding your situation. Please don’t hesitate to contact us for a consultation today.

BC’s First Family Day on February 11, 2013: Will you get paid what you’re entitled to?

B.C.’s newest statutory holiday, Family Day, will make its debut on Monday, February 11, 2013, breaking up that seemingly eternal period between New Year’s Day and Good Friday.

Family Day joins British Columbia’s nine other statutory holidays, which are:

  • New Year’s Day;
  • Good Friday;
  • Victoria Day;
  • Canada Day;
  • BC Day;
  • Labour Day;
  • Thanksgiving Day;
  • Remembrance Day; and
  • Christmas Day.

The Employment Standards Act sets out specific requirements for when employees are entitled to receive additional pay on statutory holidays, known as “statutory holiday pay”.

Who is entitled to receive statutory holiday pay?

In order to be eligible for statutory holiday pay, you must have been employed for 30 calendar days before the statutory holiday in question, and you must have worked or earned wages on at least 15 of the 30 days immediately before the subject statutory holiday. If you are covered by an averaging agreement or a variance at any time in the 30 days before the statutory holiday, then you do not have to meet the 15-day requirement.

If you are not eligible for statutory holiday pay, then your employer may pay you to work on the statutory holiday as if it were a regular work day.

If you are unionized employee, you should make reference to your collective agreement. Under the Employment Standards Act, the union and the employer may negotiate their own matters with respect to statutory holidays. If there is nothing in the collective agreement negotiated with respect to statutory holidays, then the statutory holiday provisions in the Employment Standards Act may apply as discussed in this post.

It should also be noted that statutory holiday pay may not apply to certain groups excluded by regulation. These include, but are not necessarily limited to, managers, agricultural workers, some commission salespersons, and high technology professionals.


How is statutory holiday pay calculated?

Statutory holiday pay is based on an “average day’s pay”, and is calculated by dividing your “total wages” earned in the 30 calendar days before the statutory holiday by the number of days you worked. Any vacation days taken during the 30 calendar days before the statutory holiday count as days worked. “Total wages” includes wages, commissions, statutory holiday pay and vacation pay but does not include overtime pay.

If you are eligible for statutory holiday pay and are given the day off work, you must be paid an average day’s pay. If the statutory holiday falls on your regular day off, you must also be paid an average day’s pay.

If you are eligible for statutory holiday pay, and you are required to work on the statutory holiday, then you are entitled to be paid time-and-a-half for the first 12 hours worked and double-time for any work over 12 hours, PLUS an average day’s pay on top of that.


Can another day be substituted for a statutory holiday?

Section 48 of the Employment Standards Act, says that an employer and an employee can agree to substitute another day off for a statutory holiday. An employer can also substitute another day off for a statutory holiday if the majority of employees agree to it. In this case, the statutory holiday pay requirements apply in the same manner for the substituted day.

Going forward, mark your calendar: Family Day will be held on the second Monday in February every year.

Should you have questions regarding entitlements related to Family Day, or another Statutory Holiday, please do not hesitate to contact us today.

Notice When Resigning

Thinking of quitting?
Two weeks may not be enough notice to your Employer!

Many employees believe that they can quit with a mere two weeks’ notice to their employer. As it turns out, this two week notice thing is by no means the law with respect to resignation.

As an employee, you should know that, while such lawsuits are a rarity, your employer could sue you to recoup losses as a result of your departure if you fail to provide adequate notice of your resignation.  It is therefore important that you know what “adequate notice” means for you.

The requirement to provide an employer with sufficient notice of resignation applies to everyone, and particularly so to those who are considered “key employees”.

How do I know if I am considered to be a “key employee”?

Unfortunately, there is no clear cut answer, and it is often uncertain whether a particular employee is a key employee or not. The Ontario case of Laplante v. Hennessy-Craibe, 2011 ONSC 5601 recently defined a key employee as follows:

A key employee is one who generally is responsible for guiding the business affairs of the employer, is involved in the decision-making process or is someone having access to confidential information that if disclosed could impair competitive advantage that the employer enjoys.

In another case, Imperial Sheet Metal Ltd. v. Landry, [2007] N.B.J. No. 226, the New Brunswick Court of Appeal described a key employee as follows:

A “key” employee is: (1) an integral and indispensable component of the management team that is responsible for guiding the business affairs of the employer; (2) necessarily involved in the decision-making process; and (3), therefore, has broad access to confidential information that if disclosed would significantly impair the competitive advantages that the former employer enjoyed. 

How much notice must you give to your employer?

Where there is an employment contract dealing with the your notice requirements before resigning, the amount of notice required will generally be determined by that contract.

Otherwise, there are several factors that ought to be considered when determining what amount of notice is reasonable.  The most important factor seems to be how long would it take the employer to hire and train a suitable replacement. Other factors include the duties of the employee, the nature of the workplace, and the industry in question.

If you hold a crucial or difficult-to-fill position within an organization, it is reasonable to for your employer to expect, and receive, a reasonable amount of notice.  The recent Ontario Court of Appeal decision of GasTOPS Ltd. v. Forsyth is a great example of this point: in that case, four key employees had left their employer on just two weeks’ notice. The employer sued the employees, and the Court held that two weeks was not adequate notice. In that case, the Court ruled that the employees should have given their employer ten months’ of notice of their resignation as that is approximately how long it would have taken the employer to hire and train replacements for the resigning employees.

It should also be noted that the notice requirements discussed above do not apply in cases involving a constructive dismissal. A constructive dismissal takes place when the employer unilaterally changes a term of the employee’s so that the employee’s employment is effectively terminated. Notice requirements also do not apply to employees who are involuntarily told that they must resign.

Are you a key employee who is thinking of resigning? Are you concerned that your former employer may sue you for not providing enough notice?  To learn about your particular notice obligations, contact us today for a consultation.

Employment Termination: The risks employers take by treating employees unfairly

The recent jury decision in Higginson v. Babine Forest Products Ltd. is one that should cause employers to sit up and take notice, as it demonstrates the risks that an employer assumes when they choose to treat an employee unfairly and unreasonably.

In the Higginson case, an employee, Larry Higginson, had been employed by Babine Forest Products Ltd. (“Babine”) for about 34 years, at which point he was “let go” from his employment.  The employer alleged that there was cause for the dismissal, however Mr. Higginson argued at trial that Babine had made up the cause for dismissal in order to avoid paying Mr. Higginson the great amount of severance he had built up after 34 years of service. He also argued that Babine had attempted to make his job miserable just before he was terminated in an effort to encourage him to quit.

In its decision, the jury sided with Mr. Higginson and awarded him over $800,000 in damages.  Of that, $236,000 was for compensatory damages (compensation for his losses, including severance), and $573,000 in punitive damages (damages to deter and punish).  This is the largest punitive damages award in an employment law case in Canada.

While this was a tremendous win for Mr. Higginson (pending any appeal), it should be noted that punitive damages in employment cases are definitely the exception rather than the rule. While a court must consider many factors in deciding whether or not to award punitive damages, they can be awarded against an employer where the employer’s conduct departs markedly from the “ordinary standards of decency—the exceptional case that that can be described as malicious, oppressive or high-handed and that offends the court’s sense of decency.”

If you believe that you are being treated unfairly by your employer and may have a case that warrants the awarding of punitive damages, please contact us today for a consultation.

 

Severance Entitlement on Being Fired or Dismissed Without Cause

Have you just been dismissed or let go without cause?
Are you entitled to severance?

Generally, when an employee is let go without just cause, the employer must provide the employee either with advanced working notice   of the termination (which we will refer to simply as “notice” from here on in) or pay in lieu of such notice (also known as “severance”). An employer has the option of providing the employee with a combination of notice and severance.

It should be noted that severance is normally spoken of in terms of time rather than dollar figures. This is because severance is actually pay in lieu of the notice, which otherwise would have been provided to the employee. When severance is calculated, it is based upon the amount of notice the employee should have received.

So how much notice or severance is an employee entitled to? In British Columbia, the Employment Standards Act sets out minimums for both notice and severance.  It is important to emphasize that the Employment Standards Act only sets minimums. Frequently, the entitlement to notice or severance is determined by precedent — that is, previous court decisions. Based upon the precedents set out by courts, employees are often entitled to advanced working notice or pay in lieu of such notice exceeding the minimum in the Employment Standards Act. The most useful precedent court cases are those dealing with employees similar to the employee in question.

In determining notice or severance entitlements, the Courts have considered four main factors:

  • character of the employment
  • the employee’s length of service
  • the employee’s age, and
  • the availability of alternative employment.

Of these four, the primary factors have been the character of the employment and the employee’s length of service.

Courts have tended to adjust the notice or severance entitlement up for employees that have a longer length of service, and for employees that had more responsibility in their employment. By looking at cases dealing an employee similar to the one question, there will typically be a range of severance awards that can be used to predict the severance entitlement for an employee.

Lastly, and perhaps most importantly, notice and severance entitlements can be dealt with by way of an employment contract between the employee and the employer. Subject to limited exceptions, these clauses are often enforced by the courts providing they meet the minimums set out in the Employment Standards Act.

As mentioned, notice or severance must be given to an employee where an employee is dismissed for reasons other than just cause. If there is just cause for the dismissal of an employee, then the employee is not entitled to severance. And what is just cause for dismissal? Well, that is a very intricate and complicated question for later blog posts.

If you have been dismissed, and believe that you may be entitled to severance, please contact me for a consultation today.

Overtime: Are You Being Paid Enough?

Are you receiving all of the overtime to which you are entitled?

The requirements regarding overtime in British Columbia are set out in the Employment Standards Act.

Overtime entitlements are applicable to the number of hours worked in a day or the number of hours worked in a week.

Daily Overtime
Overtime calculated on a daily basis is not payable on the first eight hours you work in a day. Once you have worked eight hours in a day, you must be paid time-and-a-half for up to the next four hours you work. After you have worked 12 hours in a day, you are entitled to double time. This applies even if you have worked less than 40 hours in a week.

Weekly Overtime
Once you have worked more than 40 hours in a week, you are entitled to overtime pay at time-and-a-half. This is true even if you have not worked more than 8 hours on any given day. So if you worked seven hours a day for six days during a week, then you would have worked 42 hours during the week. You would then be entitled to two hours of overtime paid at time-and-a-half even though you have not worked more than 8 hours on any given day.

You cannot contract out of the overtime provisions of the Employment Standards Act. There are, however, a few alternative options that employees and employers can agree upon.

Employees and employers can, for example, agree to enter into an averaging agreement where the employees’ hours per week are averaged out over a period up to four weeks.  The requirements for averaging agreements are quite strict, however.

Alternatively, an employee can request that a time bank be established. With a time bank, overtime hours are credited to the time bank instead of being paid to the employee for the pay period where the overtime takes place.  An employee can then use this time bank to take time off with pay. When the time bank is closed, then the outstanding balance in the time bank must be paid to the employee.

The overtime provisions in the employment standards act apply to most employees, but some employees are excluded such as employees who are managers.  To determine whether the overtime provisions of the Employment Standards Act apply to you, you should seek legal counsel. Please contact me today for a consultation.

 

This blog is produced by Waterstone Law Group LLP. This blog is intended for information purposes only and is not offered as legal advice for a specific claim. Subscription to or use of this site does not establish a solicitor – client relationship between the user and Waterstone Law Group LLP or any of the individual contributors. For advice relating to your employment law claim, please contact us to arrange for a consultation.