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On the Job - Pushor Mitchell's Employment Group

What is Constructive Dismissal?

You may have heard this phrase before and wondered what it means. “Constructive” in this phrase does not mean positive or helpful. It means “equivalent to”.

It comes about when an employer significantly worsens the conditions of employment of one or more employees. The conditions of employment most often changed are: wages, benefits, duties, position, and/or location. Constructive dismissal may also occur where the employee is treated unfairly, arbitrarily, or disrespectfully.

Subject to the important qualifications below, an employee who has been constructively dismissed can quit their employment (or withdraw their services) and still sue for damages (normally an employee who quits cannot sue).

In order for any such claim to be successful it is generally necessary for the employee to show that quitting was the only reasonable alternative because the effect of the change of work conditions made it untenable for the employee to carry on. It follows that a respectful and thoughtful change of conditions of employment with advance notice and reasonable implementation will not justify a withdrawal of services.

Employees who are adversely affected by change of work conditions should not assume that they will recover damages if they quit and sue. It may be more reasonable to look for another job while they are still employed.


Article written by Alfred C. Kempf


Recording employee phone calls

Can an employer record employee phone calls?

There are lots of reasons an employer may want to record phone calls in the employment context; they could be trying to record specific transactions to ensure they have the right order details, they could be trying to ensure quality assurance, or they could want to use the recordings for training purposes for their employees. If an employer wants to record phone conversations between employees or between their employees and the general public there are some important points that any employer should be aware of and must follow.

The short answer is that an employer must have a clear business need to record a telephone call between two employees or between an employee and a member of the public. Once that business need is established, the organization must ensure that they are notifying the individuals on both ends of the call that their call is being recorded and the purpose for which the call is being recorded for.

While there is not a specific provision in the British Columbia Personal Information Protection Act (PIPA) or the federal Personal Information Protection and Electronic Documents Act (PIPEDA) that outlines the rules around call recordings, there are several provisions that apply and there have been several guidelines produced by the British Columbia Office of the Information and Privacy Commissioner (OIPC) and the federal Office of the Privacy Commissioner (OPC) as well as several relevant cases.

First the legislation, PIPA requires that an organization provide an individual with notice of the purposes for which they are collecting the information, that they have consent to collect the information and that the purposes for which they collect the information must be reasonable. In the context of call recordings this means that an employer should consider the reasons they want to record calls and ensure that they notify individuals of those reasons at the beginning of the call. This can either be done by way of an automated recording or by having your employees trained to give this notification at the beginning of each call. It is also important to remember to give this notification on both incoming and outgoing calls. It is also worthwhile to physically mark any phone in the office that is being recorded; this will ensure that employees do not use that phone for personal or other uses where a recording is not intended.

Secondly, there have been several cases where the OIPC and OPC have investigated employee and other complaints regarding call recordings. These cases have led the OIPC/OPC to create several guidance documents to assist organizations in using call recordings in accordance with the applicable privacy legislation. The most recent document is a 2008 OPC document titled “Guidelines for Recording of Customer Telephone Calls” and is available on the OPC website.

The bottom line is that if you are going to record telephone calls you should:

  • Identify a clear business need to record the calls.
  • Ensure that both parties on the call are notified at the beginning of the call that their call will be recorded and the purpose for which the call is recorded.
  • Physically mark phones that are being recorded to remind employees that their calls are being recorded.
  • Ensure that your organization has an appropriate privacy policy in place.
  • Ensure that they are retaining a copy of the call recording in accordance with the relevant legislation and their internal policies.
  • Consult with a lawyer with experience in this area to ensure that you are not offside the privacy or other legislation and that you are meeting your employment obligations.


Article written by Greg Pratch

New harassment regulations

All employers are required to have polices in place to educate their employees about harassment and have a procedure in place to investigate complaints.

Employers not in compliance are in danger of being fined just like they can be fined for any other health and safety violation. While the Board is likely to give a grace period to allow employers to comply, the grace period won’t last long.

Some employers who have human rights policies may well have most of the procedures in place or may just need minor amendments to their existing policies.

It is common misconception that the policy imposes a new burden on employers. This is not the case. Employers have always been legally responsible for harassment in the workplace through claims made in our civil courts. The new WorksafeBC policies arguably will help insulate employers from civil claims.


Article written by:  Alfred C. Kempf



Texting may come back to haunt you

Use a company cell phone? What you text may come back to haunt you.

Our Court of Appeal recently held that an employer may dismiss an employee for cause (meaning without notice and payment of severance) where it discovers inappropriate text messages on the employee’s company cell phone after the employee is fired.

In Van den Boogaard v. Vancouver Pile Driving Ltd. 2014 BCCA 168, an employee was fired from his position as a project manager for a large marine general contractor, without cause. The former employer paid the employee four weeks’ base salary in lieu of notice. The employee sued for wrongful dismissal.

In preparing to defend the lawsuit, the company discovered the employee had sent text messages from his company cell phone whereby he solicited drugs from employees he formerly supervised. The employee admitted to soliciting drugs, although he claimed that he did so either outside of work hours or while on break from his employment duties.

Essentially, the Court of Appeal held that the employee’s conduct was incompatible with his role as a supervisor responsible for overseeing jobsite safety, delivering safety training, and enforcing drug prohibition policies. The employee’s conduct, although unknown to his employer at the time of his dismissal, was a “fundamental strike” at the heart of the employer-employee relationship such that the relationship was unsalvageable.

This decision serves as a reminder for (a) employees to be conscious of how they use electronic devices provided by their employers, and (b) employers to carefully examine such devices upon return for information which may retroactively justify employees’ dismissals.


Article written by Mark Danielson

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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]

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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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