Common law Employment & Termination Obligations

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1 Employment Law in British Columbia - Employment Law Presented by Taryn Mackie October 2010 Agenda Common law Employment & Termination Obligations Wrongful Dismissal & Constructive Dismissal Employment Standards Act Application or Non-Application Human Rights Code Discrimination & the Duty to Accommodate 1

2 Common Law Law made by judges Relevant to employment contracts Contracts may be verbal or written Contracts may have express or implied terms Wrongful Dismissal Absent cause, employer must provide reasonable notice of termination Absent contract, reasonable notice is calculated l at common law Court will look at age, service, position and chances of re-employment Wrongful Dismissal Reasonable notice may be altered by written contract R bl i k f Reasonable notice takes many forms Working notice Pay in lieu (lump sum; salary continuance) Wrongful dismissal means insufficient reasonable notice of termination 2

3 Just Cause Reasonable notice not required if employer has just cause to terminate employment What is just cause? Just Cause Defined Conduct incompatible with duties which go to the root of the employment contract with the result that the employment relationship is too fractured to expect the employer to provide the employee with a second chance Contextual analysis applies Examples of Just Cause Theft Dishonesty Conflict of interest Wilful disobedience Insubordination Incompetence Absenteeism or lateness Intoxication Sexual harassment 3

4 Recent Just Cause Cases 1. Dropping the F-Bomb to a Supervisor Rysstad v. Dependable Turbines Ltd. (B.C.S.C., 2007) Recent Just Cause Cases 2. Dishonesty & Conflict of Interest Carroll v. Emco Corp. (B.C.S.C., 2006; B.C.C.A., 2007) 4

5 What is it? Constructive Dismissal Unilateral change to fundamental term of employment contract Assessed objectively 5

6 Constructive Dismissal Examples: loss of status or employment related prestige reduction in remuneration change in duties, reporting relationships Duty to Mitigate Duty on employee to mitigate in both dismissal and constructive dismissal scenarios May include accepting change to terms of employment (test is reasonableness) Damages may be reduced for a failure to mitigate, and may be capped if mitigated Duties of Employee Good faith and fidelity Confidential information and trade secrets Competition with former employer Duties may continue after employment ends Fiduciaries owe special duties 6

7 Employment Standards Act Sets minimum terms and conditions Deals with hours of work and overtime leaves vacation statutory holidays severance Employment Standards Act Applies to everyone in BC unless specifically exempted Exemptions from entire At Act Professional engineers Union members Independent Contractors Employment Standards Act Exemptions from portions of the Act Managers High Technology Professionals Other Employees of High Technology Companies 7

8 Employee vs. Independent Contractor Contract of services employment Contract for services contractor How parties characterize relationship not determinative!! Relationship subject to review by courts and government agencies (Canada Revenue Agency) Human Rights Code Protects employees against discrimination number of protected grounds age / sex / sexual orientation race / religion colour / place of origin marital / family status disability conviction Section 13 of the Human Rights Code A person must not (a) refuse to employ or refuse to continue to employ a person, or (b) discriminate against a person regarding employment or any term or condition of employment because of a number of protected grounds 8

9 Section 13 of the Human Rights Code This prohibition does not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement What is a bona fide occupational requirement, or BFOR? Section 13 of the Human Rights Code A BFOR will exist where the policy, rule, or requirement: was adopted for a purpose rationally connected to the performance of the job was adopted in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose and Section 13 of the Human Rights Code BFOR Cont d where the policy, rule, or requirement is reasonably necessary to the accomplishment of that legitimate work-related purpose 9

10 Section 13 of the Human Rights Code To establish that the policy, rule or requirement is reasonably necessary to the accomplishment of that legitimate work-related purpose, it must be demonstrated that the employer cannot accommodate the employee without undue hardship Duty to Accommodate In other words, the duty to accommodate is triggered under the Human Rights Code when an employee is unable to meet a workplace standard because of a protected ground under the Human Rights Code and suffers some form of adverse treatment as a result Nature and Extent of Accommodation How far does the duty to accommodate extend? The employer has the onus to initiate the process when it knows (or reasonably ought to know) that accommodation may be required The employer has the duty to accommodate an employee to the point of undue hardship 10

11 Nature and Extent of Accommodation Undue hardship does not mean impossible to accommodate The duty to accommodate does not alter the fundamental contract of employment: the performance of work for remuneration Several factors are considered when determining whether undue hardship exists Nature and Extent of Accommodation The employee has obligations too: request accommodation (can be constructive) disclose relevant information and act reasonably - accommodation does not require a perfect solution Duty to Accommodate Accommodation in context: Mental Disabilities Family Obligations 11

12 Mental Disability Defined/Undefined Disability is not a defined term in the Human Rights Code The interpretation given to the term by the Human Rights Tribunal is broad Examples of Mental Disability Bi-polar disorder Depression Post-traumatic stress disorder Panic disorder causing panic attacks and agoraphobia Schizoaffective disorder Examples of Mental Disability Dyslexia Alcohol addiction Addiction to pain-killers Marijuana addiction Severe learning disorder Mental/intellectual deficiency 12

13 What is NOT a Disability? Stress Assessing the Mental Disability What kind of medical information is accessible? the nature of the employee s illness or disability the employee s prognosis for full or partial recovery Assessing the Mental Disability Accessible kinds of medical information the employee s functional capabilities whether treatment prescribed or recommended and if followed 13

14 Assessing the Mental Disability Accessible kinds of medical information the employee s expected date of return, or the expected duration of the absence evidence that the employee is fit to return to his or her duties Assessing the Mental Disability Onus is usually on the employee to communicate the nature of the disability to the employer BUT it is not necessary for an employee to notify the employer of the nature of his or her disability for a complaint of discrimination to succeed; this is particularly true with mental disabilities Duty to Inquire If the employer is aware or ought reasonably to have been aware of a disability, the employer has a duty to make inquiries of the employee to inform itself about the nature of the medical condition and its duty to accommodate 14

15 Duty to Inquire Insert seconds 1-39 from Duty to Inquire Red flags: sudden marked changes in mood tearfulness and expressions of hopelessness or distress withdrawing socially change in physical appearance Duty to Inquire Red flags: symptoms of exhaustion deterioration in the quality of work and learning that the employee has been hospitalized or is in counselling 15

16 Accommodating Family Obligations Campbell River is the law in British Columbia Prima facie case of discrimination exists only when an employer s unilateral change in a term or condition of employment results in a serious interference with a substantial familial obligation of the employee Questions? 16

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