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Labour & employment law column by Robert Smithson

The Term Contract Trap

There are two types of employment contracts, indefinite and limited-term. The misuse of the latter, and the resulting liability, is a trap into which employers routinely stumble.
If used properly, limited-term contracts can be a useful and effective tool for structuring employment relationships. In my experience, however, there are three common outcomes from the use of limited-term employment contracts and two of them are undesirable.
The purpose of a limited-term employment contract is to document a relationship which is truly time-limited. The employer hires an employee for a particular period of time and when the contract expires the employee departs.
Upon the expiry of the term agreement and the cessation of the relationship, the employer has no obligation to provide working notice or any pay in lieu. Correspondingly, the employee has no basis for severance-related claims against the employer.

Perception Is Reality For Self-Governing Professions

Many employees nowadays belong to self-governing professions. Lawyers, doctors, accountants, and engineers are just a few of the many.
The essence of a self-governing profession is that members of that profession create and enforce practice guidelines and codes of ethics. The members’ behaviour is monitored from within the profession and misconduct results in disciplinary measures determined by a practitioner’s peers.
The key to an association which investigates and disciplines its own members is that the public must have faith that it is acting in the public’s interest (rather than that of its members). Members of the profession must be perceived to be vigilant about rooting out misconduct and addressing it with genuine consequences.

Sorting Through Annual Pay Increase Projections

As surely as kids heading back to school and Christmas decorations appearing (too early) in stores, September brings annual projections of pay increases for the following year. These projections can – if used in a considered fashion - be a useful guideline as your business approaches its yearly pay review process.
The Globe & Mail published information this past Saturday summarizing projections for 2010 from four of the main national survey companies. Hewitt Associates, Mercer Canada, Watson Wyatt, and Morneau Sobeco are projecting average pay increases for next year in the 2.5% to 3% range. 
Incidentally, the Globe said the cost of living is projected to increase by about 2% in 2010 (according to the Bank of Canada).

Stop Shouting At Me! (LOL)

In Auckland, New Zealand a recent news item told the story of Vicki Walker who was fired from her job, in part, because of her “confrontational” emails. Ms. Walker had apparently made a practice of using block capital letters, bold typeface, and red typeface in emails.
Her employer was reported to have viewed her habits, including her email style, as creating disharmony in the workplace. Ms. Walker complained to the local Employment Relations Authority, which upheld her complain that she had not been fairly terminated from her employment.
Although the employer’s case against Ms. Walker was unsuccessful, this scenario raises questions about workplace email etiquette. It is, I think, conceivable that employees and clients alike might be offended by certain uses of available font, highlighting, colour, and other email features.
The reality is that, in many workplaces, email is now the primary form of communication, both internally and externally. The result is that employees sending emails must be cautious about not just what they communicate but how they communicate it.

Pension Clarity for Employers

Millions of Canadians’ retirement hopes rest on the fiscal health of the private pension plan to which they’ve contributed during their career. Understandably, that makes them sensitive to how the employer administers the pension plan fund.
Disputes have arisen, over time, relating to employers’ administration of the plan funds. Such things as expenses paid out of the fund, and so-called contribution holidays taken by the employer are, not surprisingly, viewed by some employees as diminishing the funds available to eventually pay out pension benefits.
In short, plan members (employees) want to see as much money as possible going into the pension plan fund and as little money as possible being taken out or otherwise consumed.

Dealing with Addiction-Related Misconduct

Complying with human rights obligations relating to employees suffering the disease of addiction is a challenge for human resources professionals. The challenge increases when the employee engages in misconduct which is driven by that addiction.
Courts, tribunals, and arbitrators have swayed back and forth on the question of whether addiction-related misconduct can amount to just cause for summary dismissal. Recent examples include an alcoholic employee who stole alcohol from his employer, another who used a company car in the course of buying cocaine during working hours, and another who stole from another employee to feed her gambling addiction.
Employers have been left in the very difficult position of not knowing whether summary dismissal in these circumstances is an appropriate response.

Getting Employees Off The Telephone

The U.S. National Transportation Safety Board has reported that, at the time of a recent mid-air collision between an airplane and a helicopter, the air traffic controller was making a personal telephone call. The crash killed nine people and is an example of what can happen when an employee is engaged in personal business rather than focused on work duties.
According to the N.T.S.B. report, the air traffic controller on duty cleared the airplane for takeoff. He then made a personal telephone call. He apparently did not notice, or warn the plane’s pilot, that there were several aircraft immediately ahead of the plane.
Air traffic controllers at another airport noticed the potential for a mid-air collision and alerted the first controller. He then, while reportedly still on the telephone, unsuccessfully attempted to alert the plane’s pilot. Moments later, the plane crashed into the tour helicopter above New York’s Hudson River.
Employers have long fought the battle to keep employees’ attention on work rather than on their personal affairs. The employers’ refrain has been that “paid time is our time”.

Do You Consent To Violence At Work?

If asked, “Do you consent to being assaulted at work?” the great majority of employees would undoubtedly answer, “No.” In some workplaces, however, violence is just part of the game.
Perhaps the most high profile setting is professional sports, with hockey being a prime example. We may not tend to think of professional athletes when we’re considering the rules of employment but, for hockey players, the ice surface is their workplace.
Recently, in Victoria, an example of the courts’ treatment of violence in sport was played out in B.C. Provincial Court. Victoria Salmon Kings player Robin Gomez was charged with assault after a March, 2008 game in which he punched an opposing player in the face. 
Gomez’s punch knocked the other player unconscious and caused a concussion, cuts requiring stitches, and temporary paralysis in the face. The player who was punched returned to the ice several months later.

Is There a Doctor on Board?

We’re all familiar with hearing a flight attendant ask, “Is there a doctor on board?” due to an in-flight medical emergency. Most of us, however, are probably not familiar with the concept of doctors claiming an entitlement to be paid for the services they provide in response.
Dr. Henry Coopersmith of Montreal recently sued Air Canada in the small claims Court of Quebec for compensation for services rendered during a flight to Paris. Perhaps surprisingly to many, he was successful in his claim for a monetary payment.
Coopersmith and his wife were flying in executive class seats from Montreal to Paris in October, 2006. During the flight, he responded to a request from cabin personnel for medical doctors to assist with passengers in need of attention. Having dealt with that incident, Coopersmith returned to his seat to catch some sleep.


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