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Labour & employment law column by Robert Smithson

Strange Tales From The Employment World

It’s almost the end of the year and the time is right to reflect on some of 2008’s weirder happenings in the employment world.
 
It was a busy year for strange occurrences in Canberra, Australia. An online company was planning to sell fake doctors’ notes to people who want to take time off work. According to published reports, such medical notes are already available in Britain and can be obtained within 48 hours.
 
A representative of the Australian Medical Association commented that the practice of selling fake medical notes is “clearly inciting and abetting a fraud”. The company, while producing authentic-looking medical notes, said they are meant to be used as novelty items and not for any illegal purposes.
 
Says the website: “We are not responsible for misuse of our products. Please use our products with caution and care.”

Mankind" Is Your Business!

The tragic news, last week, of a workplace shooting served as a grim reminder of the frequency of such violent occurrences. The fact that it occurred just as the holiday season is getting underway makes the whole scenario all the more heartrending.
 
Benjamin Banky, CEO of Vancouver natural health products wholesaler TallGrass Distribution, was shot by a gunman who invaded the office Christmas party. A man thought to be a recently-released employee was arrested and charged with first degree murder.
 
Police said that such occurrences are rare but the reality is they are far too common. A simple internet search will turn up a litany of recent instances in which employees have attacked and killed their office mates. Although the great majority of them seem to occur in the United States, the rest of the world is by no means immune.
 

Labour Consultants Lack Privilege In Some Circumstances

In the employment world, many employers make use of outside consultants to advise on human resources policies and procedures. They may not realize that not everything they say to those consultants is necessarily protected by privilege.
 
The use of outside consultants is particularly prevalent in the unionized world. Labour consultants and advisors perform many useful roles such as reacting to union organizing activities and assisting with collective bargaining.
 
Many employers see this as a cost-effective way of obtaining the expertise of individuals who have had long and varied experiences dealing with trade unions. It can certainly be a preferable approach to an employer attempting to tip-toe through the minefield of labour relations alone.
 

Employees Have Right to Remain Silent - Sometimes

In the unionized employment context there is a recognized right to remain silent when asked to participate in an investigation by the employer.   As two B.C. Ferries employees have discovered, however, that right is not without exceptions.
 
The two employees, Lilgert and Hilton, were the crew members primarily responsible for navigating the Queen of the North ferry the night in 2006 when it sank in Wright Sound. As a result of that tragic accident, B.C. Ferries launched an inquiry for the purpose of determining the cause and issuing a public report.
 
When B.C. Ferries sought to question Lilgert and Hilton about the events leading to the accident, they refused to co-operate. On the advice of legal counsel, they refused to answer any questions relating to the critical period from the ship’s entry to the waters approaching Gil Island until the time of its impact and grounding.
 

Is Cyber-Sacking The Way Of The Future?

 
The front page in Kelowna’s Saturday Okanagan newspaper blared “Cybersacked” this past weekend. The accompanying story told of a spa employee who found out she was fired by reading a message sent by her employer to her Facebook inbox.
 
It must have been a slow news day for this to qualify as front page news but, nonetheless, the employer’s use of Facebook to deliver the notice of termination may signify something about the times in which we live. 
 
The employee was offended by receiving such news electronically, commenting that “Firing an employee on Facebook is not a professional way to do it”. Chances are that if her employer was a considered a Facebook “friend”, it isn’t any longer.
 

Limiting the Negative Impact of Alcohol Consumption

When we’ve reached the point in the year at which the falling leaves threaten to engulf a two-storey home, it’s time to re-visit the risks posed by holiday parties. Approaching those events with some forethought is a good strategy for avoiding the negative impact that alcohol consumption by employees can have.
 
The first aspect to address is the risk of injury to an employee – or someone else – as a result of alcohol consumption. Canadian court cases have firmly established the employer’s duty of care to take active steps to prevent injuries as a result of its employees’ alcohol consumption. 
 
If banning alcohol from staff events altogether isn’t satisfactory, there are steps the employer can take to reduce the likelihood of an accident. The employer should establish a policy, governing service and consumption of alcohol at company events.
 

Firing Pasta Maker A Recipe For Disaster

 
When Richard Flores began a two week medical leave from his job as a pasta maker, he had no reason to think his employment would be in jeopardy. Soon after his return to work from a bout of acute gout arthritis in his foot, however, Flores found himself out of a job.
 
Flores was a 59 year old immigrant from the Philippines who had found employment in 2002 with Duso Enterprises Ltd. in Port Coquitlam. Flores’ occupation as a pasta maker required him to heft 20kg bags of flour into a pasta mixer and to carry the resulting rolls of pasta. It is a continuous process which requires a certain level of physical ability.
 
Soon after starting work in 2002, Flores had an attack of gout. He claimed Duso warned him, then, that if he could not do the job they would find someone else who could.
 

Religious Objections to Union Membership

When the phrase “religious objector” is mentioned, most people would likely think of objections to military service. Few would be aware that the B.C. Labour Relations Code exempts certain individuals from union membership because, as a result of their religious beliefs, they object to joining trade unions.
 
The Labour Relations Board may order that the applicant is not required to join a trade union or to pay any dues, fees, or other assessments to the union. The individual must, however, donate equivalent amounts to a charity registered under the Income Tax Act.
 
The Board’s policy is that the individual’s personal religious convictions will be scrutinized, not the particular tenets of the religion. As a result, an applicant for this exemption must go farther than to prove membership in a religion which adheres to a non-union philosophy.
 

Supreme Court Weighs In On Post-Employment Duties

Regular readers of this column will be familiar with my interest in court decisions dealing with post-employment competition. The courts have been very accommodating over the years in issuing many, varied views on the ongoing duties of employees.
 
Recently, the Supreme Court of Canada issued a decision in a case which originated in Cranbrook, British Columbia. The branch manager of the Cranbrook RBC branch, Don Delamont, helped to coordinate the abrupt departure of virtually all the investment advisers at that branch.
 
They left (without notice) for employment with RBC’s local competitor, Merrill Lynch, leaving only two very junior advisors behind. Before they departed RBC, they copied client records and transferred them to Merrill Lynch. They were described as having made “concerted and vigorous efforts” to move clients to Merrill Lynch before RBC could act to protect its client relationships.
 

Addiction Is Not A Blanket Excuse For Misconduct

There can be little doubt that dealing with employees suffering the disease of addiction is a challenge for human resources professionals. That challenge becomes greater when the employee raises the addiction as an excuse for engaging in misconduct.
 
The B.C. Court of Appeal has recently dealt with a case in which an admitted alcoholic was fired for theft. His union raised the existence of the addiction, and its alleged relation to the theft, as a basis for claiming the employer had a duty to accommodate.
 
Gooding was a supervisor in a liquor store owned by B.C.’s Liquor Distribution Branch. He had been stealing stock from the store over as much as a two year period of time. He was confronted by his employer and admitted, for the first time, that he was an alcoholic. 
 

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