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Labour & employment law column by Robert Smithson

Employers: Don't Mislead the Court

One of the riskier strategies employers will engage in is a mischaracterization of the reasons for dismissal of an employee. When that extends to attempting to mislead a judge about those reasons, the strategy can become a very costly error.
 

Tyler Marchen was an apprentice automobile collision repair journeymen working for Dams Ford Lincoln Sales Ltd. in Surrey, British Columbia. The apprenticeship agreement between Marchen and Dams was for a four-year term.

Who Says Whistleblower Protections Don't Work?

In 2005, the Supreme Court of Canada had its first opportunity to interpret a workplace whistleblower law. It took the opportunity to signal to the business community that courts will give broad and liberal meaning to such statutory protections.
 
A Saskatchewan employee of the Iron Workers Union alleged she was fired from her job as bookkeeper and office manager of Ironworkers Local 771 because she “blew the whistle” on financial abuses committed by her immediate supervisors (including the union local’s president).
 
The employee relied upon the protection provided by Saskatchewan’s Labour Standards Act. That statute prohibits employers from dismissing an employee who “has reported or proposed to report to a lawful authority any activity that is or is likely to result in an offence”.
 

State of the Union - Employment Style

The occasion of the 300th edition of this column is perhaps as good a time as any to take a look at the present state of the employment relationship. During the last 15 years, many things have changed and not all of them are necessarily positive.
 
One thing that has become abundantly clear in the last 6 months or so is that employment statutes and the common law are not conducive to the sort of precipitous down-sizing demanded by the present economy. Employers of all shapes and sizes have been faced with an urgent need to scale down their workforce virtually overnight.
 
The notice (and pay in lieu) obligations imposed on employers by both the employment standards statutes (individual and group notice) and the common law definitely were not designed with the present situation in mind. This is not a scenario in which employers are really to blame for the fact that their workforce is substantially larger than required and must be reduced immediately.
 
 
The stunning impact of the recent change in the economic winds was largely unforeseen by employers (or anyone else, for that matter). In particular, the speed with which a boom economy turned into a temporary bust was pretty much unprecedented.
 

B.C. Court Lays a Smackdown on Tribunal

A perception that a person does not have a disability does not constitute discrimination. That’s a statement with which, I am confident, few people would take issue.
 
Strangely, it took the Supreme Court of British Columbia to make this point clear to B.C.’s Human Rights Tribunal. The Court did so in abrupt language which revealed an apparent frustration with the intellectual machinations of the Tribunal.
 
In 2004 Rex Yuan was involved in a traffic accident. Another vehicle struck the rear of Yuan’s vehicle while he was stopped at a red light.
 
Yuan made a claim for personal injuries with the Insurance Corporation of British Columbia (ICBC). He asserted that, as a result of the accident, he suffered soft tissue injuries to his neck and shoulder.
 

Avoiding the Pitfalls of Enticement

In employment law circles, the terms “enticement” or “inducement” refer to the more aggressive methods by which an employer will woo an individual to accept an employment offer. In a competitive job market, employers will often go to great lengths to convince a person to leave his/her existing employment and join the team.
 
These efforts can, however, have nasty consequences for the employer if the new employment proves to be short-lived. The courts have consistently awarded substantially increased damages to plaintiffs who have been enticed from secure, gainful employment only to find themselves unemployed shortly thereafter.
 
The kind of enticing conduct which gets the employer into hot water isn’t necessarily all that extreme. A typical situation might involve the use of a head-hunter who identifies an attractive candidate and then pursues that candidate. That effort might involve repeated overtures, the presentation of increasingly sweet offers such as signing bonuses, holding out the prospect of future promotions and salary increases and long-term job security, etc.

Banish the Performance Review?

Samuel Culbert is a professor of management at the UCLA Anderson School of Management in Los Angeles. Culbert recently published an article in the Wall Street Journal entitled, “Get Rid of the Performance Review!”.
 
Culbert’s theory is that, rather than contributing to workplace management, annual pay and performance reviews are destructive of workplace relationships. He calls the “one-side-accountable, boss-administered review” “little more than a dysfunctional pretense”.  He says they are “a negative to corporate performance, an obstacle to straight-talk relationships, and a prime cause of low morale at work”.
 
This sort of revolutionary talk will be shocking to the average human resources manager. The annual pay/performance review process is not only integral to many human resources strategies, it is their reason for being. 
 

Employees Cannot Dictate Duties

 
Over the past few months a battle has been fought in B.C. between the Teachers Federation and the Public School Employers’ Association over the application of province-wide standardized testing. The BCTF assembled broad support amongst its members for its refusal to administer the tests to B.C. students.
 
As this dispute has evolved, many people have asked me, “How can the teachers get away with this?”. The simple answer is that they cannot. They do not have the authority to dictate to their employer, the PSEA, what duties they will and will not perform.
 
The tests in question are known as “Foundation Skills Assesement” or “FSA” tests. They are administered province-wide to students in grades 4 and 7. The BCTF took issue with a number of aspects of the testing and its results.
 

I Quit! (No I Don't)

Employers sometimes show a real knack for overplaying the hand they’ve been dealt. One instance where that tendency is displayed is in mishandling the apparent resignation of a difficult employee.
 
This is a scenario which is played out with surprising frequency. So common is it that a body of case law has developed to answer the question, “when can we rely on an employee’s statement of an intention to resign?”.
 
The problem for employers is that not all employees quit in a reliable fashion. Ideally, the employee provides a letter of resignation and then, on the designated day, ceases to provide employment services. In such an instance, there would be little difficulty concluding a voluntary resignation has occurred.
 

The Lord Was His Only Boss (And Then He Got Fired)

There are bosses and then there are bosses. According to Seann Friesen, the Lord was his boss. Unfortunately for Mr. Friesen, his employer didn’t totally buy into that concept.
 
Friesen was a fish plant cleaner working for Fisher Bay Seafood Ltd. in Sidney, British Columbia. Fisher Bay operated a plant that processed seafood, employing about 50 people spread across day and night shifts. 
 
Friesen worked on the night shift with several other employees, cleaning and preparing the plant for the next processing day. (That work is, by Friesen’s account, “wet, cold and stinky”.)
 
Fisher Bay was very pleased with Friesen’s work. By all accounts he was a good and reliable employee. As a result, he was promoted to a supervisory position and was given pay raises and verbal recognition of his efforts.
 

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