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On the Job - Pushor Mitchell's Employment Group

Severance may depend on contract

Whether you are an employer in British Columbia or an employee, many of you are aware that the Employment Standards Act outlines, among other things, the severance obligations that employers have to meet in the event they decide to terminate an employee without cause.  It is also commonly known that the severance obligations set out in the Employment Standards Act are the minimum severance amounts that an employer must pay to an employee upon termination.  What is less commonly known, however, is unless an employer and employee expressly agree in an employment contract that the employee is only entitled to the minimum severance amounts, that employee's entitlement to severance will actually be determined based on common law principles (i.e. judge made law), rather than based on the amounts set out in the Employment Standards Act.  

Why is this distinction between common law severance and Employment Standards Act severance important to employers and employees?  The importance varies depending on whether your perspective is that of an employer or an employee.  The first reason the distinction is important is because severance determined in accordance with common law principles is generally more significant than the minimums under the Employment Standards Act.  Secondly, as an employer, knowing that you can limit severance pay-outs to the minimums set out in the Employment Standards Act means that you can minimize the cost of employee terminations, as long as you take the time to enter into appropriately worded employment contracts with your employees.  From an employee's perspective, on the other hand, it is important to understand that if you did not sign a written employment contract that expressly restricts your severance entitlement to the minimums set out in the Employment Standards Act, you may then be entitled to increased severance in the event of termination, based on common law principles.  In the event your employment in terminated, you should consult with a lawyer in order to determine whether the severance that is being offered is appropriate in your particular circumstances.

Based on the fact that employee terminations can have significant financial consequences for both employers and employees, it is wise, whether you are an employer or employee, to obtain legal advice when dealing with the unfortunate and difficult circumstances surrounding an employee termination.

 

Article submitted by Greg Pratch



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Think twice before you sue

Jian Ghomeshi is just one example of an employee who regrets taking action against his employer.

A recent case in BC involved a project manager who was terminated without just cause. He sued his employer wanting more severance pay than he was offered.

When he returned his cell phone after the termination the employer discovered that the former employee had texted a subordinate asking him to illicitly procure drugs for him. Even though this wasn’t known by the employer until after the termination, it was sufficient to justify cause for dismissal.

The result:

  1. The Employee is out of pocket whatever he paid his lawyer.
  2. He had to pay his Employer’s costs of $11,000.
  3. He “lost” whatever severance his employer offered him.
  4. It is now public record that he uses illicit drugs and involves subordinates in their purchase. That has to be career limiting!

The case can be found by clicking here.

 

Article submitted by Alfred C. Kempf



Are interns employees?

This seems to be a hot topic all across North America.

Interns often provide services to revenue-generating organizations including non-profits. There is no doubt that they contribute to the sustainability of these enterprises while also developing a skill or gaining practical knowledge. Traditionally, it has been considered that they are not employees. Therefore, it is assumed (perhaps incorrectly) that there are no Worker’s Compensation Board, overtime, minimum wage, Income Tax, CPP, and Employment Insurance obligations.

Cases concerning interns in the United States have gone both ways on the issue and there are appeals in process.

There appears to be no binding decisions in Canada on the issue of whether interns should be treated as employees.

In BC our Employment Standards Branch publishes interpretation guidelines which are not particularly helpful in making a determination: http://www.labour.gov.bc.ca/esb/igm/esa-part-1/igm-esa-s1-work.htm.

The reason for the uncertainty is that the typical definition of Employee in our legislation is broad and inclusive.

In my view those employers who are requiring interns to do work conducted by other employees are at risk of being declared an employer for these interns.

 

Article written by Alfred Kempf



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Workplace drug and alcohol concerns

Addressing drug and alcohol abuse in the workplace is a challenging and sensitive issue, as addictions sit at the crossroads of privacy law, human rights, occupational health and safety and management rights.

From a management perspective, substance abuse impacts several important employer interests and the employee’s ability to meet expectations flowing from the employment relationship. Some of these expectations include the employee’s ability to:

  • attend work punctually and regularly;
  • perform assigned duties competently and fully capacitated; and
  • perform assigned duties in a healthy, safe and conscientious manner.

Recognizing the competing rights and interests at play when concerns over substance abuse arise, it is important for management to have a clear understanding of how and when they should intervene.

 

When Substance Abuse is Suspected

Drug or alcohol dependency is now clearly recognized as a disability. For this reason, human rights law and the duty to accommodate become engaged when an employer either knows or ought to know of the disability. Recognizing this, if the employer suspects that the employee’s absenteeism or performance issues are related to substance abuse, it has a duty to make inquiries regarding the health of the employee before taking disciplinary action or other steps that adversely affect the employee’s employment.

In a sense, the “duty to inquire” is akin to an informal and internal investigation. It can include making notes and observations about the employee’s conduct (arriving late, slurred speech), the employee’s appearance (glossy or blood-shot eyes, odour) and of course speaking with the employee in question and his or her co-workers.

Naturally, meeting with someone suspected of having an addiction issue will not be a typical meeting or interview. The topic is very sensitive and it should be anticipated that the employee may deny the allegation, become defensive and possibly offended or aggressive. Management needs to be respectful, supportive and must recognize that the employee’s behaviour (including a denial) is a symptom of the disability. Misbehaviour associated with an addiction may be involuntary and should not necessarily be considered a culpable misconduct.

If the employee confirms a substance abuse problem, the employer should immediately begin to work with the employee to manage expectations and to identify and support a relevant accommodation plan. This plan can include a leave of absence to seek treatment and a flexible schedule to allow for appointments with doctors, counselors or support services.

If the employee denies having an addictions issue, the employer may then be in a position to address performance and safety issues through corrective actions. Even when an employee denies an addiction, management should clearly document the discussion with the employee, summarizing concerns raised regarding substance abuse and any discussions of accommodation. While the employer must be sensitive to the fact that denial of an addiction may also be a symptom of the illness, the employer will nonetheless be in a stronger position to address problem behaviour through corrective action and progressive discipline without raising discrimination concerns.

 

Mandatory or Random Testing

Some employers, particularly in safety sensitive industries, are inclined to take a proactive approach to drug and alcohol use by imposing random testing of employees. This type of testing has been the topic of significant debate in recent years due to its invasive nature and underlying human rights questions. In fact, random testing has even been the subject of a recent Supreme Court of Canada decision.

Where employers have argued that random drug and alcohol testing is necessary to promote safe workplaces, our courts have largely rejected this reasoning. Presenting a dangerous workplace will not in itself be sufficient to justify random alcohol or drug testing. For today’s safety sensitive employers, random alcohol and drug testing will be carefully scrutinized, and will only be permitted in a dangerous working environment where there is evidence of an existing general problem of substance abuse in the workplace.

Recognizing this, testing can be permitted where an employer has reasonable cause to believe that an employee is impaired, where the employee has been involved in an accident or near miss, or as part of a return to work program for substance abuse.

 

Conclusions

Addressing substance abuse in the workplace is complex and multifaceted, pitting diverse and competing interests in privacy, human rights and management rights against one another. In this environment, employers need to be vigilant by being respectful and supportive of disabilities and treatment plans, while also ensuring a healthy and safe working environment.

Employers who suspect that an employee has a substance abuse problem are encouraged to get legal advice to discuss the duty to inquire and their obligations under the duty to accommodate.

 

This article is the fourth in a series written on workplace investigations. Read previous entries in this series and watch HRVoice.org for additional articles coming soon.

 

David Brown is an employment lawyer with the Kelowna law firm Pushor Mitchell LLP. For more information on workplace investigations and other employment law matters, please contact David at [email protected].

The merits of any potential claim are always fact dependent. Readers should not take legal action, or should not refrain from taking legal action, in reliance on the information contained in this article and without first obtaining advice from legal counsel in their home jurisdiction.



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About the Author

Pushor Mitchell's Employment Group assists clients in meeting the challenges of today's workplace, including: hiring, firing, management, discipline, contracts, human rights, employment standards, privacy and many other related issues. In their column, the authors' provide practical and interesting information on employment law topics for both employers and employees.

The authors: Alfred Kempf, Greg Pratch, Joni Metherell, Keri Grenier, Mark Baron, and Mark Danielson.

Have an employment law topic you want to see addressed? Comments or suggestions are always welcome.

Email: [email protected]

Additional information available on our website: www.pushormitchell.com

 




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The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet presents its columns "as is" and does not warrant the contents.


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