Labour & employment law column by Robert Smithson

Most employers likely believe that an employee given working notice of termination and who refuses to keep working has forfeited any legal claim to damages.  They likely would have been correct in that belief, until now.

British Columbia’s Court of Appeal has issued a judgment stating that – in some circumstances – an employee given working notice can refuse to work and will not lose the right to sue for wrongful dismissal.  This is a bit of a complicated matter that seems to tilt the playing field somewhat in employees’ favour.

The basis of the law of wrongful dismissal is an employee’s right to receive reasonable working notice of termination.  Unless an employee’s rights have been properly altered by contract or there is just cause for summary dismissal, the employer must to provide reasonable working notice of termination.

What is “reasonable” depends on the circumstances.  Courts take into account factors such as the employee’s age, tenure of employment, position, extent of managerial responsibilities, and likely difficulty in finding new employment.

When employers and their former employees are trying to settle disputed issues arising out of a termination of employment, there are many monetary factors to address.  Perhaps surprisingly, it isn’t always the money which is the stumbling block to reaching a settlement.

A very important aspect to any part of a settlement for a departing employee is receiving a reference letter.  Often, the employee will insist on getting a reference letter and the employer will be reluctant to provide it.

The reference letter is, in some ways, a comparatively small aspect of such settlements.  But it has large emotional and practical implications for the departing employee and can be the point on which a prospective settlement lives or dies.

For the employee, departing from a job without a reference letter leaves what I call a “black hole” in his or her employment history.  This can have a crippling effect on the individual’s job search (especially when the employment was quite lengthy).

The individual will ask himself or herself, “How do I explain to potential employers that I don’t have a reference letter?” and “Am I supposed to pretend that job never happened?”.

Of all the technological developments causing employers to lament a loss of attentiveness in the workplace, the cellular telephone must be the undisputed champion.  As recent events involving the Canadian Pacific Railway Company have indicated, the distraction of cellular telephones can have dangerous results.

In the last ten years or so, employers have been scrambling to find a way to stem the distractions caused by evolving technology.  Desktop internet access, social networking, emailing, texting, tweeting – for non-work purposes – have taken a substantial toll on employees’ attention to their duties.

Modern smartphones put all of those activities squarely in the palm of the employee’s hand.  The temptation to communicate with acquaintances, update a Facebook page, tweet urgent thoughts of universal importance, or shop for online bargains has proven irresistible for many.

At a law firm I previously worked with, a legal secretary sat outside my office in my direct line of sight from my desk.  She would brazenly type on her personal phone so often in the course of the workday that I nicknamed her “Blackberry Girl”.  She wasn’t employed there for very long.

Lots of weird and (occasionally) wonderful things happen in the workplace.  Standing in as Santa for a few weeks each December is certainly no exception.

In Vancouver last week, police were called to the Rusty Gull pub after a couple of Santas enjoying some “Christmas spirits” apparently took offence to another patron.  The man was apparently seen approaching the two jolly fellows in red inside the bar.

Soon, it is alleged, one Santa threw a punch and, at that point, police were called in.  The two Santas had fled the scene by the time they arrived and police were unable to track them down – it seems that police dogs aren’t much use in tracking down flying sleighs. 

In Lubbock, Texas, fire officials said a Texas man who had to be rescued from the chimney of his house after several hours of being stuck claimed he wasn’t trying to be Santa Claus. He was just locked out of his house.

They had to hoist the 22-year-old man by rope from the chimney.  The man, apparently wanting to save the price of a locksmith, decided to enter the house through the chimney as his wife and child waited outside.  Yeah, sure, like that wasn’t really a trial run for Christmas Eve.

The N.H.L. has a massive workplace issue.  It isn’t Canucks’ fans’ ongoing love/hate relationship with Roberto Luongo and it isn’t the fact that yet another organization has bought into the myth of Tomas Kaberle as an elite player.

The issue which threatens to undermine the N.H.L., in a variety of ways, is concussions.  The whole matter came to a head, so to speak, when Sidney Crosby became the latest victim of blows to the head. 

It worsened when Sidney’s comeback stalled in the last week or so.  Add his name to the list of concussion victims including Lindros, Primeau, LaFontaine, Deadmarsh, Bergeron, Moore, McAmmond and, most recently, Pronger.  And many, many hundreds of others.

It takes a Sidney Crosby on that list, of course, to bring the matter home to hockey’s governing bodies, sponsors, and fans.  Whether the issue of concussions in hockey is a new development or is one which has been there all along and has just recently found the spotlight is really irrelevant because, either way, something needs to be done about it.

In 2008, the B.C. government enacted occupational health and safety rules governing employees working alone or in isolation.  There were three new categories of workplace protection introduced at that time, one of which now seems to have been substantially watered down.

The first of the 2008 rules continues to apply to all employers.  They must identify, eliminate, and control hazards before a worker is assigned to work alone or in isolation.  And they must develop and implement a procedure for checking the well-being of any worker who is assigned to work alone or in isolation.

The second of the 2008 changes also continues to apply, specifically to employers operating gas stations.  They must implement a prepay system for all fuel sold in gas stations and other refueling outlets (with the exception of marine fueling stations).

The prepay system does not have to be the common pay-at-the-pump system, but it does have to be set up to ensure gas is paid for before pumping begins.  The fuel prepay rules apply 24 hours per day, 7 days per week.  These rules apply in both urban and rural locations throughout B.C., include both self-serve and full-serve gas stations, and are in effect regardless of how many workers are present.